McPhee v DGP Nominees Pty Ltd Trading as Centre Ford - [1999] WASC 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MCPHEE -v- DGP NOMINEES PTY LTD TRADING AS CENTRE FORD [1999] WASC 58

CORAM: OWEN J

HEARD: 4 JUNE 1999

DELIVERED : 10 JUNE 1999

FILE NO/S: CIV 1493 of 1997

BETWEEN: DAVID RUSSEL MCPHEE
Plaintiff
AND
DGP NOMINEES PTY LTD TRADING AS CENTRE FORD (ACN 008 768 707)
Defendant

Catchwords:

Defamation - Pleadings - Applications to strike out parts of statement of claim and defence - Prior applications for leave to amend - Applications not competent

Legislation:

Nil

Result:

Applications dismissed

Representation:

Counsel:

Plaintiff: Mr R W Richardson
Defendant: Ms M G Saraceni

Solicitors:

Plaintiff: Michell Sillar McPhee
Defendant: Jackson McDonald

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

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Case(s) also cited:

Monte v Mirror Newspapers Ltd [1979] 2 NSWR 663
Peruvian Guano Co v Bockwoldt (1883) Ch D 225
Robinson v Adshead (No 2) (1995) 12 WAR 577
Young v Holloway [1895] P 87

OWEN J: A preliminary question has arisen whether the plaintiff's application to strike out parts of the defence is competent given earlier appearances before Anderson J. The same might arguably be said about the defendant's application to strike out parts of the amended statement of claim. I have been through the Court file and the position seems to be as follows.
The statement of claim was amended under O 21 r 1 on 3 June 1997. A defence was filed on the same day. On 6 November 1997 Acting Master Chapman made orders giving relief in a number of respects. He adjourned to a special appointment the defendant's application for (among other things) "leave to file and serve an amended defence in terms of the minute of amended defence to the amended statement of claim dated 28 October 1997". Nowhere on the file is there a "minute of amended defence dated 28 October 1997". However, there is on file a document filed by the defendant and dated and filed 31 October 1997 entitled "Minute of Amended Defence to Amended Statement of Claim". There is also on file a document dated and filed 14 January 1998 which is a notice of motion seeking leave "to amend [the defence] --- in terms of the minute of amended defence filed herein dated 28 October 1997". Another document on file is dated and filed 20 November 1997 and entitled "Defendant's Answers to Plaintiff's Objections to Minute of Amended Defence". Nowhere on file is there a document that sets out the plaintiff's objections to which the 20 November document is a response.
On 14 January 1998 Anderson J made certain orders. They have never been extracted but the fiat says:
"Leave granted to amend defence in terms of the minute of amended defence to amended statement of claim with exception of paragraph 12."
There is not attached to the fiat a copy of the minute referred to in the orders. On 28 January 1998 the defendant filed a document entitled "Amended Defence to Amended Statement of Claim Pursuant to the Order of Anderson J made on 14 January 1998". The amended defence which was filed on 28 January 1998 is identical in its terms to the minute dated 31 October 1997, except that the paragraph numbered "12" has been omitted.
On 23 November 1998 the plaintiff took out a summons for leave to amend the amended statement of claim "in terms of the minute of proposed further amended statement of claim dated 23 November 1998". Not surprisingly there is not on file a document answering the description of a "minute of proposed further amended statement of claim dated 23 November 1998". There is, however, a document dated and filed 28 January 1999 entitled "minute of amended proposed further amended statement of claim".
On 29 January 1999 Anderson J made further orders. Again I say with no hint of surprise, the orders have not been extracted. The fiat says: "in terms of minute", and it then goes through paragraph by paragraph announcing whether the proposed amendment is or is not allowed. On 5 February 1999 the plaintiff filed a "further amended statement of claim". It faithfully reflects the orders made by Anderson J on 29 January 1999 assuming that the "minute" referred to in those orders is the minute dated 28 January 1999. The fiat does not mention the filing of an amended defence consequent on the amendments to the statement of claim. On 19 February 1999 the defendant filed a further amended defence to the further amended statement of claim.
On 18 February 1999 the defendant filed a chamber summons to strike out parts of the further amended statement of claim. On 17 March 1999 the plaintiff filed a chamber summons to strike out parts of the further amended defence to the further amended statement of claim. These are the applications that came before me on 4 June 1999 for resolution.
I will deal first with the plaintiff's application to strike out parts of the defence. It seems to me that the "minute of proposed amended defence dated 28 October 1997" referred to in the notice of motion dated 14 January 1998 is in fact the minute dated 31 October 1997. I say this because there is on file no minute dated 28 October 1997 and the amended defence which was eventually filed and which purports to have been authorised by the orders of Anderson J made 14 January 1998 mirrors it. Paragraphs 10, 11 and 13 of the minute and of the amended defence filed 28 January 1998 are identical to par 7, par 8 and par 10 respectively of the further amended defence dated 19 February 1999.
Both parties were represented by solicitors at the hearing before Anderson J on 14 January 1998. It is a reasonable assumption that the document filed 20 November 1997 and entitled "Defendant's Answers to Plaintiff's Objections to Minute of Amended Defence" was before Anderson J on 14 January 1998. That document says, among other things:
"As to paragraphs 10, 11 and 12, these paragraphs are clearly admissible on the bases of:
(a)     mitigation of damages;
(b)     the question of whether the plaintiff waived or released the libel; and
(c)     whether the plaintiff is now estopped from setting up any cause of action based on the pre-Christmas 1995 statement."
I have perused the transcript of the hearing on 14 January 1998. At one point, the solicitor who then appeared for the plaintiff told Anderson J:
"We don't actually object to paragraphs 10 and 11 of the amended defence. We subsequently changed it from our initial submissions which we served upon you. Paragraphs 9 and 12 are the only paragraphs we object to."
I have already said I believe the minute that was before Anderson J was the minute of 31 October 1997. Paragraphs 10, 11 and 13 of the minute are identical to par 7, par 8 and par 10 respectively of the further amended defence that was before me for resolution. So far as concerns par 7 and par 8, it appears that the plaintiff initially intended to object but made a conscious decision to withdraw the objection. As to what is now par 10 of the further amended defence, the plaintiff had the opportunity to object but advised Anderson J that he did not intend to do so. Paragraph 9 of the minute has since disappeared from the pleading because it related to the plaintiff's claim for economic loss, which has since been abandoned. Paragraph 12 of the minute was an estoppel claim that Anderson J disallowed. It is no longer of any concern. Paragraphs 7 and 8 are now advanced as a plea of accord and satisfaction as well as going to mitigation of damages. I do not think there is any material difference (for the purposes of this application) between the claim of accord and satisfaction and the reference in the 20 November 1997 document to waiver and release. While they are separate concepts, they all go to the cause of action rather than to damages. It seems to me, therefore, that the issues that the plaintiff now wishes to raise in relation to par 7, par 8 and par 10 of the further amended defence were either squarely before Anderson J or, if they were not, the plaintiff had the opportunity to raise them at the time. If the former, the question now before me has been ruled on by Anderson J (either expressly or by necessary implication) at the time when he gave leave to amend the defence. If the latter, the case management principles and considerations akin to the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 would seem to militate against the matter being revisited. The plaintiff's application to strike out par 7, par 8 and par 10 of the further amended defence is incompetent. That leaves par 9. The plaintiff effectively withdrew the objection to that paragraph and it should stand.
In my view par 10 of the further amended defence has the capacity to cause confusion at trial because it might be said to operate at large. For the reasons I have already given it cannot be struck out. I will invite the plaintiff to seek further and better particulars of the allegations in par 10.
I turn now to the application to strike out par 5.1 and par 5.2 of further amended statement of claim. Once again, both parties were represented by solicitors at the hearing before Anderson J on 29 January 1999. The fiat indicated the hearing went for almost an hour. There is no indication on file what matters were canvassed at the time. However, as I have already said the further amended statement of claim faithfully reflects the minute that I believe was before Anderson J. Paragraph 4 sets out the word complained of in amended and expanded form. The fiat makes express reference to par 4 and contains the notation: "amendment allowed". Paragraph 5 sets out the imputations for which the plaintiff now contends. Again, in relation to par 5 the fiat carries the notation: "amendment allowed". It must be remembered that the amendment to par 5 goes to the very heart of the entire litigation, that is, the defamatory imputations on which the plaintiff's claim is based. It would be strange indeed if a judicial officer were to grant leave to amend in a contested application without turning his or her mind to that issue. It is sometimes the case that a judicial officer will (in effect) grant provisional leave to amend reserving to the other party the right to make proper objections at a later time. There is no indication that any such reservation was made on this occasion. Accordingly, it seems to me that the defendant's application is incompetent for the same reasons as have been set out in relation to the plaintiff's application.
The plaintiff effectively conceded that the words in par 7 "credit," (line 2) and "in his business and employment and" (lines 2 and 3) are superfluous. For sake of clarity I think I should give the plaintiff leave to amend the statement of claim again to remove those words.
The orders that I propose are these:
1. The plaintiff have leave to amend the statement of claim by deleting the words in par 7 "credit," (line 2) and "in his business and employment and" (lines 2 and 3) and a second further amended statement of claim be filed and served by 18 June 1999.
2. The plaintiff have leave to request further and better particulars of par 10 of the amended defence by 18 June 1999 and the defendant provide answers to any such request by 25 June 1999.
3. The defendant's application dated 18 February 1999 to strike out the statement of claim and the plaintiff's application dated 17 March 1999 to strike out the defence otherwise be dismissed with no order as to costs.
4. The status conference be re-listed before the Case Management Registrar as soon as practicable.