McCormack v Trott
[2025] WASC 276
•9 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCCORMACK -v- TROTT [2025] WASC 276
CORAM: SOLOMON J
HEARD: 20 MAY 2025
DELIVERED : 9 JULY 2025
FILE NO/S: CIV 2446 of 2024
BETWEEN: GORDON NOEL JAMES MCCORMACK
Plaintiff
AND
MATTHEW JAMES TROTT
First Defendant
TRAINING SERVICES AUSTRALIA PTY LTD
Second Defendant
Catchwords:
Defamation - Application to stay proceedings - Abuse of court processes - Application to strike out
Legislation:
Copyright Act 1968 (Cth), s 115
Defamation Act 2005 (WA), s 21
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J Maclaurin SC |
| First Defendant | : | Mr M L Bennett & Mr A J Tharby |
| Second Defendant | : | Mr M L Bennett & Mr A J Tharby |
Solicitors:
| Plaintiff | : | Fletcher Law |
| First Defendant | : | Bennett |
| Second Defendant | : | Bennett |
Case(s) referred to in decision(s):
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
English v Vantage Holdings [2021] WASCA 47
Hazeldean v Austal Ships Pty Ltd [2004] WASC 44
Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Thiess v TCN Channel Nine Pty Ltd (1994) 1 Qd R 156
Training Services Australia Pty Ltd v Saferight Pty Ltd [2025] WASC 7
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
SOLOMON J:
The application
In these proceedings, the plaintiff, Mr Gordon McCormack, sues Mr Mathew Trott and the company of which Mr Trott is a director and shareholder, Training Services Australia (TSA), for the tort of defamation. In this application, Mr Trott and TSA apply for a permanent stay of the defamation proceedings. If that application is not successful, Mr Trott and TSA, in the alternative, seek to strike out parts of Mr McCormack's statement of claim.
The evidence
In support of their application for a stay of the proceedings, the defendants filed an affidavit from Mr Trott dated 19 March 2025 (19 March Affidavit) and an affidavit from a legal practitioner with the firm acting for the defendants, Ms Jessica Haddad, dated 22 April 2025. In opposition to the stay application, Mr McCormack filed an affidavit dated 2 April 2025. The affidavits were received by the court without objection.
Background
An understanding of the application requires an explanation of the background context. In particular, it is necessary to explain the litigation that preceded these defamation proceedings (the initial proceedings).
Mr McCormack is the managing director of a company known as Saferight Pty Ltd (Saferight). Saferight and TSA are competitors. They both operate businesses that provide online training services for the mining industry in Western Australia. Simply put for present purposes, Saferight is Mr McCormack's company and TSA is Mr Trott's company.
In August 2023, TSA issued proceedings against Saferight and Mr McCormack and sought urgent ex parte injunctive relief. In those proceedings and in its urgent application, TSA alleged that Mr McCormack and Saferight had induced one of Saferight's employees, a Mr Jason Atkinson, to enrol in an online course provided by TSA and unlawfully take screenshots of the course materials for the purpose of assisting Saferight to develop its own course for its commercial advantage. TSA obtained urgent injunctive relief to search Saferight's premises to find and retrieve material taken from TSA's courses.
Following the grant of injunctive relief, TSA continued with its action against Saferight and Mr McCormack for damages including damages under s 115 of the Copyright Act 1968 (Cth). In its statement of claim in the initial proceedings, TSA alleged that in early July 2023, Mr McCormack directed Mr Atkinson to enrol in TSA's online course and obtain screenshots from TSA's course in order to assist Saferight to develop its own course for commercial exploitation.[1] This particular aspect of the statement of claim was subsequently amended to remove the reference to screenshots and to plead that Mr McCormack's direction was to obtain information.[2] It was nevertheless alleged further in the statement of claim that on Mr McCormack's direction or authorisation, Mr Atkinson enrolled in TSA's course and took screenshots of the materials.[3] In its defence, Mr McCormack denied that Mr Atkinson acted under Mr McCormack's or Saferight's direction or authority. Saferight joined Mr Atkinson as a third party to the proceedings claiming that he acted in breach of his contract with Saferight by his conduct including by taking the screenshots of TSA's online course.
[1] Statement of claim, 29 September 2023 [22].
[2] Amended statement of claim, 2 September 2024 [22].
[3] Amended statement of claim, 2 September 2024 [26B].
On 12 March 2024, the parties attended a mediation with a registrar of the court. The mediation was not successful. The next day, 13 March 2024, an article was published in the Sydney Morning Herald and WA Today regarding the dispute and the failed mediation (the article). The article included quotes from Mr Trott and TSA's lawyer. The article was titled:
Mining school sues rival for 'inserting spy to steal content'
The body of the article included the following:[4]
[4] Affidavit of Matthew James Trott, 19 March 2025, 97 - 99.
Fresh details have emerged in the highly charged court row between two rival mining safety training companies, one of which claims it uncovered a plot by its competitor to insert a secret agent and steal its course material.
Training Services Australia dragged competitor Saferight to the Supreme Court for damages in August with the help of a former Saferight employee, who blew the whistle on the alleged scheme.
Court documents filed in the case disclose that an employee recruited by Saferight between July and August 2023 was instructed to enrol in TSA's online course.
The writ lodged on August 21 claims the former employee obtained more than 400 screenshots of TSA's bespoke program without its knowledge and in breach of its copyright.
…
The parties gathered behind closed doors for peace talks at the court on Tuesday, but WAtoday can reveal attempts to resolve the row were unsuccessful, and the matter looks set to proceed to trial.
…
TSA claim Atkinson had been instructed by Saferight's managing director Gordon 'Mack' McCormack to pose as an employee of mining services company Thiess and enrol in TSA's online course.
And that's precisely what Atkinson did.
TSA's director Matthew Trott said Atkinson later had a 'crisis of conscience' and told the company about the alleged incident, which he described as 'deeply concerning'.
'We could not allow a rival business to gain a competitive advantage over us by such underhanded means,' he said.
'We're thankful that Mr Atkinson had a crisis of conscience and told us, but this blatant fraudulence should never have happened in the first place.'
On 16 April 2024, lawyers for Saferight and Mr McCormack wrote to TSA and Mr Trott's lawyers with a formal 'concerns notice' alleging that the article contained defamatory imputations. The complaint in essence related to allegations that Mr McCormack and Saferight had directed Mr Atkinson to enrol in the course and copy material and that they had done so as part of a dishonest or fraudulent design to steal TSA's intellectual property. The letter demanded a retraction and the payment of damages.
On 14 May 2024, Mr McCormack and Saferight's lawyers wrote again to TSA and Mr Trott's lawyers noting that no response had been received to the letter of 16 April 2024 and asking whether they had instructions to accept service of proceedings. On 15 May 2024, TSA and Mr Trott's lawyers responded that they had instructions to accept service of the foreshadowed proceedings.
In the meantime, on 13 May 2024, in advance of a directions hearing for the management of the initial proceedings, Mr McCormack filed an affidavit (13 May Affidavit) which included the published article and stated that the publication had been financially damaging to Saferight. The affidavit appears to have been filed in support of a minute of orders proposed by Saferight for the management of the initial proceedings to trial in a fairly rapid timeframe.[5]
[5] Plaintiff's minute of proposed orders, 24 April 2025.
It appears some negotiation ensued in relation to the proposed orders. On 31 May 2024, and in the course of the conferral relating to orders for the conduct of the proceedings, TSA's lawyers emailed Saferight's lawyers pointing out differences in the orders each side proposed and seeking to narrow those differences. The correspondence is unremarkable. However, at the end of the email, there is a separate paragraph as follows:[6]
Separately, I note you asked whether we have instructed to accept service of any defamation writ. We consider it is relevant to the programming orders made in the actions whether your client intends to commence defamation proceedings against Mr Trott. Please let us know if your client intends to commence defamation proceedings and if so when we can expect to receive the writ.
[6] Affidavit of Jessica Aida Haddad, 17 April 2025, 4.
There was no reply to that aspect of the email. Mr McCormack's lawyers remained silent on whether they intended to issue defamation proceedings as threatened in the 16 April 2024 concerns notice.
The parties then appear to have reached agreement on the orders for management of the initial proceedings. On 20 June 2024, his Honour Tottle J made orders, by consent, for the management of the proceeding to trial. The matter was to be listed for trial by 1 November 2024 and trial dates were ultimately fixed for seven days commencing on 5 December 2024.
The parties proceeded with trial preparation. Then on 30 October 2024, Saferight and Mr McCormack provided TSA with a formal offer of compromise.[7] The offer included much of the relief sought by TSA and a payment of $100,000. On 1 November 2024, TSA formally accepted the offer.
[7] Affidavit of Matthew James Trott, 19 March 2025, 140 - 141.
Although the proceedings resolved on the basis that TSA received much of the relief it claimed, as the matter settled, the underlying factual dispute was not adjudicated. That included the issue, disputed on the initial proceeding pleadings, as to whether Mr Atkinson was acting under Mr McCormack's direction or authority as alleged by TSA or whether, as contended by Mr McCormack and Saferight, Mr Atkinson's conduct was undertaken independently of Mr McCormack and Saferight.
Notwithstanding the settlement, the parties could not agree on a number of residual matters including the content of the orders to be made by the court. Those matters were determined by his Honour Lundberg J with reasons published in Training Services Australia Pty Ltd v Saferight Pty Ltd.[8]
[8] Training Services Australia Pty Ltd v Saferight Pty Ltd[2025] WASC 7.
In the meantime, on 6 December 2024, Mr McCormack commenced these defamation proceedings against Mr Trott and TSA. The initiating writ was served on 10 December 2024.[9] As was foreshadowed in the concerns notice of 16 April 2024, the essence of Mr McCormack's complaint in these defamation proceedings is that the comments attributed to Mr Trott and TSA in the article asserted that Mr McCormack dishonestly instructed or directed Mr Atkinson to pose as an employee of Thiess, enrol in TSA's course and unlawfully obtain copies of TSA's course material, and that Mr McCormack's conduct amounted to a dishonest and fraudulent scheme.
[9] Affidavit of Matthew James Trott, 19 March 2025, 6.
Relevantly, in his (proposed amended) statement of claim, Mr McCormack pleads the following.[10]
[10] As explained at [50] below, these reasons adopt and proceed on the basis of the plaintiff's proposed amended statement of claim contained in the plaintiff's submissions in opposition to defendants' application to strike out statement of claim, 7 May 2025, 5 - 10.
At [4]:
On or about 13 March 2024, the First Defendant, also for and on behalf of the Second Defendant, and/or authorised agents of the Defendants published words of and concerning the Plaintiff to Ms Jesinta Burton (Ms Burton), a journalist employed by the publisher and proprietor of, amongst other media mastheads, The Sydney Morning Herald and/or WA Today which was defamatory matter ('Matter Complained Of') being, as best as can be presently pleaded by the Plaintiff (and pleaded subject to paragraph 5 below) words or words to the effect of the following:
4.1'Atkinson had a crisis of conscience and told [the Second Defendant] about an incident where [the Plaintiff] had told instructed Atkinson to pose as an employee of mining services company Thiess and enrol in TSA's online course', which was 'deeply concerning';
4.2'We could not allow a rival business to gain a competitive advantage over us by such underhanded means';
4.3'We're thankful that Mr Atkinson had a crisis of conscience and told us, but this blatant fraudulence should never have happened in the first place';
At [5]:
The Matter Complained Of was published in the context of a communication with Ms Burton about Supreme Court of Western Australia proceedings Training Services Australia Pty Ltd v. Saferight Pty Ltd, Gordon Noel James McCormack and Jason Leith Anderson CIV 1937 of 2023 and:
5.1such communication involved matters which subsequently appeared in Ms Burton's article, described at paragraph 7 below, including:
a)the second defendant had uncovered a plot by its competitor to insert a secret agent and steal its course material;
b)a former employee of Saferight blew the whistle on the alleged scheme;
c)the employee – turned – whistle-blower has been revealed as Jason Atkinson;
the former employee obtained more than 400 screenshots of TSA's bespoke program;
and
5.2Further particulars of the words spoken by the First Defendant and the context in which those words were spoken in the communication with Ms Burton will be provided after discovery (including, specifically, interrogatories) and subpoena directed to that purpose.
At [6]:
In its natural and ordinary meaning, further and alternatively by way of a true inuendo, the Matter Complained Of published by the Defendants meant, in the context of the matters pleaded in paragraph 5.1, and was understood to mean that the Plaintiff:
6.1devised and implemented an unlawfully fraudulent scheme to steal competitors' property by the Plaintiff instructing an employee, Mr Atkinson, to steal such property by way of the subterfuge of dishonestly posing as an employee of another company and taking screenshots of the Second Defendant's property.
6.2had engaged in blatant and illegal fraud.
In his prayer for relief Mr McCormack seeks relief by way of damages, including aggravated damages and a permanent injunction restraining TSA and Mr Trott from repeating the allegedly defamatory material.
The stay application
In support of the application to stay the proceedings, Mr Trott and TSA intend to advance defences of substantial truth and justification.[11] In essence they seek to defend the defamation claim by asserting that the matters published were true. That defence will necessitate a factual enquiry as to whether Mr McCormack directed or authorised Mr Atkinson, or whether Mr Atkinson acted on his own accord. At least in large measure, that is the same factual enquiry that emerged on the pleadings in the initial proceedings that were settled. That overlap of the factual enquiry lies at the heart of Mr Trott and TSA's application for a stay of these defamation proceedings.
[11] Affidavit of Matthew James Trott, 19 March 2025 [38].
TSA and Mr Trott contend that the defamation proceedings amount to an abuse of process and ought to be stayed for the following reasons.
First, as explained above there is a significant overlap in the factual enquiry raised in both proceedings.
Secondly, the parties are in substance the same. The initial proceedings were brought by TSA against Mr McCormack and Saferight. Saferight then joined Mr Atkinson as a third party. Mr Trott was not a party to the initial proceedings. In these defamation proceedings, Mr McCormack is the sole plaintiff. He sues each of Mr Trott and TSA. The parties are therefore not the same. However, Mr McCormack is in effect, and for the matters relevant to both proceedings, the controlling mind of Saferight and Mr Trott is the controlling mind of TSA. In those circumstances, Mr Trott and TSA contend that the parties are in substance the same.
Thirdly, Mr Trott and TSA refer to Mr McCormack's 13 May Affidavit referred to at [11] above, filed in advance of the directions ultimately made by the court on 20 June 2024. As noted above, that affidavit makes reference to the allegedly defamatory media article. The reference appears to have been directed to persuading the court of the urgency of the matter. That suggests that Mr McCormack was urging the resolution of the initial proceedings as a means of repairing the reputational damage he believed was caused by the article. Having deployed the article for that purpose in the initial proceedings, Mr McCormack then adopted a strategy of not issuing the defamation proceedings until a month after the initial proceedings were resolved. Mr Trott and TSA complain that this was part of a strategy that amounts to an abuse of the court's processes.
Fifthly, as part of the contention that the subsequent and belated issuing of defamation proceedings constitutes an abuse of process, Mr Trott and TSA argue that given the substantial overlap in the factual matrix and the substantive equivalence of the parties, the defamation claim could and ought to have been prosecuted as part of, or alongside the initial proceedings.
In his 19 March Affidavit in support of the stay application, Mr Trott deposed to his belief regarding the substantial overlap between the two proceedings. He also gives evidence of the financial and emotional burden of the initial proceedings and the distress caused by the prospect of now having to litigate the issues that he thought were resolved by the settlement of the initial proceedings.
Mr Trott also gave the following evidence in his affidavit:[12]
I did not consider Mr McCormack would commence these defamation proceedings as, in my mind, it would have made perfect sense to have commenced the proceedings much earlier and dealt with the same issues as part of or alongside the Saferight proceedings. Further, based on the matters described in Mr Atkinson's affidavit and witness outline and Mr Coleman's witness outline (which reflects what Mr Coleman had separately informed me in conversations with him), which I verily believe to be true, I considered Mr McCormack commencing defamation proceedings would result in harm to his reputation, not vindication, and he would be crazy to do so.
[12] Affidavit of Matthew James Trott, 19 March 2025 [47].
In that regard, counsel for TSA and Mr Trott submitted that in the circumstances, Mr Trott had an entirely justifiable and reasonable belief that the settlement of the initial proceedings had effectively resolved Mr McCormack's grievance regarding the article. That justifiable belief therefore reflected the improper or oppressive character of the defamation proceedings.
In resisting the stay, Mr McCormack argued that these defamation proceedings advance a different cause of action and have a different focus. The initial proceedings concerned, fundamentally, a breach of TSA's copyright and sought damages and related relief for that breach. In contrast, these defamation proceedings relate to the damage caused by an allegedly false and defamatory publication. The publication is said to have been strategically orchestrated immediately after a failed court mediation in the initial proceedings. The proposed defamation proceedings were unambiguously brought to the attention of the defendants through a formal concerns notice. Mr Trott and TSA were thus clearly aware of the threatened defamation proceedings. TSA, through its lawyers, in writing, asked Mr McCormack about his intentions in respect of the defamation proceedings and Mr McCormack remained silent. TSA thus proceeded to settle the initial proceedings without seeking to resolve the grievance arising from the allegedly defamatory media article. The grievance and the threat of proceedings had been formally and clearly expressed and never retracted. Counsel for Mr McCormack contended that in those circumstances, TSA had settled the initial proceedings with its 'eyes wide open' and there could be nothing oppressive or abusive in the issuing of the defamation proceedings.
Mr McCormack also pointed to the fact that the defamation proceedings extend beyond matters that were strictly relevant to the initial proceedings. They include the allegations in the article that Mr McCormack instructed Mr Atkinson to 'pose' as an employee of another company in order to enrol in the online course and that he engaged in a dishonest and fraudulent scheme.[13] That immoral characterisation of the conduct was not a substantive issue in the initial proceedings which essentially and distinctly concerned alleged breaches of TSA's copyright.
[13] Affidavit of Matthew James Trott, 19 March 2025, 97.
Mr McCormack thus contended that these defamation proceedings are fundamentally different from the initial proceedings notwithstanding the substantial overlap in the factual matrix. The two proceedings are different in the nature of the claims, the causes of action, the relief sought and the identity of the parties.
In relation to his reference to the article in the course of the initial proceedings, Mr McCormack's position appears to be that he initially considered that he would remedy his reputational damage from the article through the initial proceedings. In his affidavit dated 2 April 2025, Mr McCormack said he was of the view that he was likely to be vindicated by a trial in the initial proceedings. Mr McCormack's evidence was also that he had received legal advice that it would not have been appropriate to issue defamation proceedings against Mr Trott while the initial proceedings remained pending and indeed that might be viewed as an attempt to put improper pressure on Mr Trott, who was to be a witness in the initial proceedings. Mr McCormack's evidence was that he therefore decided to defer issuing the defamation proceedings until after the initial proceedings had been completed.[14] Those contentions of Mr McCormack were not tested or interrogated in this application. Be that as it may, Mr McCormack then made a decision to settle the initial proceedings on a commercial basis and issue separate proceedings to deal with the separate issue of his reputational loss that arose from the article. He did so having made his intention plain through the concerns notice and then remaining silent when asked expressly in May 2024 if he was intending to issue the defamation proceedings.[15]
[14] Affidavit of Gordon Noel James McCormack, 2 April 2025 [19].
[15] See [12] of these reasons.
Mr McCormack's position was that Mr Trott and TSA were not justified in assuming that the settlement of the initial proceedings would quell the controversy about the media article. The defamation complaint was a different thing. Mr McCormack had issued a concerns notice that remained unresolved. And when Mr McCormick was asked whether he intended to issue proceedings, he remained silent. TSA settled the initial proceedings in that context and Mr Trott and TSA had no reasonable basis to assume that the settlement resolved the complaint in relation to defamation.
Applicable principles
Counsel for Mr Trott and TSA referred to a number of cases that set out the principles in relation to the grant of a stay in circumstances of an abuse of the court's processes. They included, in particular, the High Court decision in UBS AG v Tyne.[16]
[16] UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77.
In this jurisdiction the principles that arise from the authorities were comprehensively summarised by Vaughan J in Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd.[17] The following relevant principles may be distilled from his Honour's comprehensive review and summary of the authorities.
[17] Patrick Jebb as trustee for The Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 from [102].
(1)What amounts to an abuse of the court's processes is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
(2)Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.
(3)The onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised with caution and only in the most exceptional or extreme case.
(4)Abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
(5)A determination that proceedings constitute an abuse of process is not a discretionary decision. There can only be one correct answer to whether there is or is not an abuse of process. There is no discretion to dismiss or stay a proceeding as an abuse of process if they are not in truth an abuse. Conversely, if there is an abuse of process, then there is no discretion whether or not to make an appropriate order to remedy the abuse; a dismissal or a stay must be ordered.
(6)The doctrine of abuse of process is informed in part by considerations of finality and fairness. The underlying public interest is twofold: there should be finality in litigation and a party should not be twice vexed in the same matter.
(7)Abuse of process may exist where a person seeks to re‑litigate an issue already decided. There is a general public interest in the same issue not being litigated over again.
(8)There may also be an abuse of the process of the court in seeking to litigate matters which could and should have been litigated in earlier proceedings. In that regard, it may be relevant to ask whether there is a reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceedings. In a particular case it may be sensible to advance claims separately or for one claim to be deferred pending the determination of another.
(9)The court is not only concerned with the effect of conduct on the parties but with the maintenance of public confidence in the administration of justice. The court acts to prevent misuse of its procedure which would bring the administration of justice into disrepute among right-thinking people.
(10)The doctrine does not require the exact equivalent identity of parties or mutuality of the actions. The fact that the parties may not be identical, or the relief different, does not necessarily disentitle a party to relief under the doctrine of abuse of process.
(11)The task necessitates an evaluative judgment sensitive to all the facts and circumstances and informed by the public interest in preventing re-litigation of disputes. The court conducts an overall balancing of the interests of justice.
Disposition
In undertaking the necessary evaluative assessment, it may first be observed that Mr McCormack's decision to delay the issue of these proceedings until after the settlement of the initial proceedings, may have not unreasonably been perceived by Mr Trott and TSA as falling short of open and candid fairness. The turn of events would not have appeared to Mr Trott and TSA to be the conduct of someone motivated by a desire for reconciliation and harmony. Mr Trott and TSA are quite obviously, and not without some justification, deeply disappointed by what has unfolded. But whatever the position may have in fact have been, Mr Trott's and TSA's disappointment is largely beside the point. Of themselves, the infliction of deep disappointment, or a lack of goodwill, or a zest for strategic manoeuvre (if that is what occurred) do not amount to an abuse of process.
In my view, in all the circumstances, these defamation proceedings do not reach the level of an abuse of process for the following reasons.
There is plainly a substantial overlap in the factual enquiry and matrix between the initial proceedings and these defamation proceedings. However, the initial proceedings did not go to trial. There was no adjudication of the factual controversy. This is not a case of re‑litigation. There is also therefore no risk of inconsistent outcomes.
Notwithstanding the factual overlap, the copyright claim is different to and legally distinct from the defamation claim. Not only is the cause of action entirely different, the general character is different. The moral character of Mr McCormack's conduct is central to the defamation proceedings. He seeks to have that matter squarely addressed and adjudicated. That was not the focus of the initial proceedings.
I accept that given the relationship between Mr Trott and Mr McCormack and their respective companies, there is in substance a strong identity in the parties of the two proceedings. Nevertheless, the parties in the two proceedings are not in fact the same.
I also accept that it may have been possible to run the two proceedings in tandem and have them heard together with evidence in one matter standing as evidence in the other. Nevertheless, given the differences in the causes of action, the relief sought and the precise identity of the parties I am not persuaded that the decision to prosecute the matters separately is so unreasonable as to give rise to an abuse. Moreover, defamation proceedings, although common, are a fairly unique species of litigation. For example, uniquely in civil proceedings, s 21 of the Defamation Act 2005 (WA) provides that a party to defamation proceedings may elect for the proceedings to be tried by jury. Running a civil jury trial in tandem with another civil action is no doubt possible but plainly presents challenges.
Further, as noted above, Mr McCormack had formally and explicitly foreshadowed the proceedings in a concerns notice. He then remained conspicuously silent when asked expressly about his intention to issue the proceedings. TSA chose to settle the initial proceedings in that context and, it seems, without enquiring further about Mr McCormack's plans.
As noted above, Mr Trott gave evidence that he did not anticipate Mr McCormack would issue defamation proceedings.[18] His counsel submitted that the belief was reasonable and justifiable in the circumstances. It is necessary to pay some attention to Mr Trott's evidence. Mr Trott does not say, in terms, that he considered or assumed that the settlement of the initial proceedings resolved the defamation issue. Rather, he thought that Mr McCormack would not issue defamation proceedings where, based on his own unilateral assessment, it appeared, that it would have made 'perfect sense' to have done so earlier. That aspect of Mr Trott's evidence appears to me to have a lawyerly‑informed air of retrospectivity about it. Significantly, Mr Trott gave further evidence in support of the argument that he did not think Mr McCormick would sue for defamation because he thought Mr McCormack would lose and therefore would be 'crazy' to do it.[19] That is quite different to a reasoned conclusion that the settlement of the initial proceedings had quelled the controversy in relation to the alleged defamation.
[18] See [31] of these reasons.
[19] Affidavit of Matthew James Trott, 19 March 2025 [47].
In simple terms, to the extent that Mr Trott held any assumption that the settlement of the initial proceedings had resolved the defamation proceedings, this was based on his own assessment of what made 'perfect sense' as a litigation strategy and because he thought Mr McCormack would lose a defamation action. Of themselves, those matters do not appear to me support a conclusion that Mr Trott was so justified in his assumption that it renders Mr McCormack's conduct to the contrary, an abuse of process.
For those reasons I would dismiss defendants' application for a stay of the proceedings.
Strike-out application
In response to the defendants' alternative application to strike out parts of the statement of claim and their written submissions, senior counsel for Mr McCormack appended to his written submissions proposed amendments to the statement of claim. The defendants pressed the application to strike out notwithstanding the proposed amendments. In these reasons I proceed on the basis of the statement of claim as proposed to be amended in the terms appended to the plaintiff's written submissions.
As the defendants' submissions record, the applicable principles in relation to a strike-out application are well established and are repeated by the Court of Appeal in English v Vantage Holdings adopting the valuable guide of her Honour Smith J at first instance in that same matter.[20]
[20] English v Vantage Holdings [2021] WASCA 47 [55] - [56].
The defendants' first complaint concerns the words in [4] of the statement of claim:
the First Defendant, also for and on behalf of the Second Defendant, and/or authorised agents of the Defendants published.
The defendants contend the plea is embarrassing because it fails to convey who said which of the quoted passages, why what was published is to be attributed to one or both of the defendants or the basis of the alleged authority or agency.
Notwithstanding some possible lack of clarity introduced by the words 'and/or authorised agents', in the course of oral submissions the intention of the plea emerged quite clearly. By reason of the article it may be inferred that someone on behalf of TSA conveyed or 'published' the offending content to the journalist Ms Burton. It may also be inferred that the person who did so was Mr Trott. The plea introduces the possibility that it may have been conveyed to Ms Burton on behalf of TSA by someone other than Mr Trott.
In their written submissions the defendants' complaint appeared to be directed to the principle that a mere contribution to a published article is not sufficient to establish liability on the part of the contributor. In that context, the submissions directed attention to the decisions of Thiess v TCN Channel Nine Pty Ltd[21] and Dank v Cronulla Sutherland District Rugby League Football Club Ltd.[22] The complaint appeared to be that the plea did not disclose which aspects of the article were the subject of Mr Trott's (or another agent of TSA) communication to the journalist. In those circumstances, the contribution of Mr Trott or another agent of TSA could not rise above a mere contribution.
[21] Thiess v TCN Channel Nine Pty Ltd (1994) 1 Qd R 156, 195 - 196.
[22] Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288.
In oral argument, counsel for the defendants submitted that once it is conceded by the plaintiff that it may have been a different agent of TSA, and not Mr Trott who conveyed the offending communication to Ms Burton, then a claim against Mr Trott cannot be maintained. In that regard, counsel for TSA directed attention to the decision in Hazeldean v Austal Ships Pty Ltd (Hazeldean).[23]
[23] Hazeldean v Austal Ships Pty Ltd [2004] WASC 44.
In response the plaintiff also relied upon the decision in Hazeldean.
In Hazeldean the plaintiff claimed damages for defamation in relation to a work reference allegedly given by the defendant to a recruitment agency. Following an application for pre‑action discovery a document emerged which indicated that the defendant, for whom the plaintiff had previously worked, had conveyed comments to the recruitment agency that were adverse to the plaintiff. The plaintiff believed that the adverse comments had prevented him from obtaining further employment. The plaintiff sued his former employer for defamation in respect of the comments the defendant had conveyed to the recruitment agent. The plaintiff did not know the identity of the particular employee of the defendant who had conveyed the comments to the recruitment agency nor the precise words spoken. The application before the court was the plaintiff's application for leave to administer interrogatories to identify and confirm the content of the allegedly defamatory communication between the employee of the defendant and the recruitment agency.[24] The application was opposed by the defendant as a fishing expedition.
[24] Paragraph [1] of the decision refers to an application by the defendant to administer interrogatories. A reading of the decision as a whole establishes that this is an error and that the reasons concern an application by the plaintiff.
Newnes M explained that the problem faced by a potential plaintiff who does not know the precise words published of him has long been recognised. The learned Master then referred to Gatley on Libel and Slander (9th ed) at 26.16, where the learned authors say: [25]
As with cases of libel, the best course is for the plaintiff to set out as best he can in the statement of claim the words which he believes to have been spoken by the defendant. He should then interrogate the defendant as to the actual words which he used on the occasion in question. Such an interrogatory is only likely to be allowed where the plaintiff can show by uncontradicted affidavit that the defendant has at a certain place and in the presence of certain persons made against him a slanderous imputation of a definite character. The court will only assist a plaintiff who can demonstrate that he has a good cause of action but is unable to find out the precise form in which to frame it [Atkinson v Fosbroke [1866] LR 1 QB 628. And see Russell v Stubbs [1913] 2 KB 200n …].
[25] Hazeldean [17].
The learned Master explained that an action cannot be sustained where it is clear that the plaintiff does not know what had been said and had simply guessed at the words and put those in the statement of claim.[26] However, a plaintiff will be permitted to maintain a statement of claim and interrogate to ascertain precisely what words were spoken, where the plaintiff can clearly show that a slanderous imputation has been communicated but the plaintiff lacks the means of ascertaining the exact terms of the communication.[27]
[26] Hazeldean [24].
[27] Hazeldean [25] - [26].
In my view, there is a sufficient basis for the proposed amended statement of claim to be maintained. Paragraph 4 refers to comments in the article that are framed as quotations from Mr Trott. Those comments are attributed to Mr Trott as 'TSA's director'. In the circumstances, the plaintiff is able to show that an arguably defamatory imputation has been communicated on behalf of TSA by Mr Trott to the journalist Ms Burton.
The defendants complain that [4.1] of the statement of claim extends beyond the words in the article attributed to Mr Trott. I do not agree with that characterisation of the article. As set out above, the article states that Mr Trott said he told the company about the 'alleged incident'. That is plainly a reference to the incident in the immediately preceding paragraph. That is in substance the content of [4.1].
It may be accepted, as the cases referred to above demonstrate, that a mere contribution to an article without any control as to its final form is insufficient to establish liability on the part of the contributor. That does not present any difficulty in this matter. The statement of claim complains of the matters that the article itself indicates were communicated by Mr Trott as the director of TSA to Ms Burton. There is no issue of mere contribution in that context. Nor is there any issue of attribution. Each and all of the maters complained of are alleged to have been communicated by Mr Trott on behalf of TSA. There is no lack of clarity in that.
The addition of the words 'and/or authorised agents' is somewhat curious given that the article itself attributes the communication to Mr Trott and there is no suggestion that it was anyone else. Nevertheless, I am not inclined to strike those words out. It is clear enough that what was said to Ms Burton was said on behalf of TSA. It is TSA that is being sued (together with Mr Trott). If the matters of which the plaintiff complains were said by someone else on behalf of TSA then that is a detail that the plaintiff cannot know other than by the defendants pleading to the statement of claim in circumstances where, as I have said, it is clear enough that an arguably defamatory communication was made by TSA.
The defendants also complain of the imputations pleaded at [6] of the statement of claim.
First, it was submitted that the reference in [6.1] to 'taking screenshots' cannot arise as the natural and ordinary meaning of the matters pleaded in [4] because the matters pleaded in that paragraph make no reference to the taking of screenshots. In my view, the answer to that is reasonably straightforward. The matters complained of as pleaded in [4] are expressly said to be subject to the matters pleaded in [5]. The chapeaux to [6] also pleads that the imputations arise in the context of the matters pleaded in [5.1]. Paragraph 5 contains express reference to other matters appearing in the article including at [5.1(d)], the obtaining of more than 400 screenshots.
Secondly, the defendants complain of the alleged imputation in [6.1] of 'an unlawfully fraudulent scheme'. The defendants submit that the imputation cannot arise as a natural and ordinary meaning because a single instruction cannot equate to a scheme. The defendants also contend that there is no foundation for an imputation of fraud because the word 'fraudulence' in this context cannot rise higher than dishonesty or moral culpability. Further the ordinary reasonable person would not, even arguably, understand the words to mean that Mr McCormack had committed fraud in the legal sense.
In my view the matters pleaded are capable of giving rise to the imputations pleaded in [6.1]. An instruction to do something that involves a number of steps can amount to a scheme. Further, the word 'scheme' appears expressly in the article itself. The word 'fraudulence' is in my view plainly capable of bearing a meaning of fraud in the legal sense. That is all the more so given the title to the article includes the word 'steal'.
The defendants also contend that the matters pleaded are not capable of giving rise to the imputation pleaded at [6.2] that Mr McCormack engaged in blatant and illegal fraud. In my view, as explained in the preceding paragraph, the matters pleaded in [4] in the context of the matters pleaded at [5] are capable of giving rise to the imputation pleaded at [6.2].
For those reasons, I would dismiss the defendants' strike‑out application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Associate to the Hon Justice Solomon
9 JULY 2025
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