Mobb, Patricia Andrea v Philbey, Vernon P

[1998] TASSC 58

58/1998

PARTIES:  MOBB, Patricia Andrea
  v
  PHILBEY, Vernon P
  & OTHERS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  CV9/1998
DELIVERED:  18 May 1998
HEARING DATE/S:  4 May 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Defamation - Actions for defamation - Particulars - Of statement of claim or declaration - Innuendo - Whether precise words of allegedly defamatory document should be related to each of the specific imputations pleaded.

DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21, Hadzel v De Waldorf [1970] 16 FLR 174, distinguished.
Aust Dig Defamation [121]

REPRESENTATION:

Counsel:
           Plaintiff:  S J Holt
           Defendant:  G W Tremayne
Solicitors:
           Plaintiff:  Murdoch Clark Cosgrove & Drake
           Defendant:  Griffits & Jackson

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  58/1998
Number of pages:  3

Serial No 58/1998
File No CV9/1998

PATRICIA ANDREA MOBB v
VERNON P PHILBEY & OTHERS

REASONS FOR JUDGMENT  COX CJ

18 May 1998

This is an application by the defendants to a libel action for the striking out of that portion of the statement of claim which pleads the imputations alleged to be defamatory or, in the alternative, for an order that the plaintiff deliver particulars of the specific words in the document allegedly published by the defendants which the plaintiff alleges gives rise to those imputations.

According to the statement of claim, the defendants are members of the King Island Council and the plaintiff was employed by the Council as a Community Development Officer until her employment was terminated on 2 November 1994.  On 5 December 1994, the defendants published to every household on King Island a press release of and concerning the plaintiff.  The press release is a 3½ page document annexed to the statement of claim.  By par4 the plaintiff pleads:

"4.The press release in its natural and ordinary meaning was defamatory of the plaintiff and meant and was understood to mean:

(a)that the plaintiff untruthfully made-up allegations that the Council discriminated against her on the basis of her gender and feminist beliefs in her evidence to the Industrial Court of Australia at Melbourne;

(b)that the plaintiff committed the criminal act of perjury in giving her evidence to the Industrial Court of Australia at Melbourne;

(c)that the plaintiff caused the Council's premiums for workers compensation insurance to rise from $24,008 in 1994/1995 to $83,580 in 1995/1996;

(d)that the plaintiff wilfully breached an undertaking to the Industrial Relations Commission; and

(e)that the plaintiff was an unsatisfactory employee who deserved to be dismissed;"

The statement of claim alleges that the plaintiff has been thereby damaged and seeks further an award of aggravated and/or exemplary damages.

From the above it can be seen that the plaintiff has pleaded quite specific imputations.  Because they are not related to specific words in the press release, the defendants claim the pleadings are embarrassing and do not enable them to plead any specific defences.  They claim that a long document has been "thrown" at them without the plaintiff picking out the particular passages defamatory of her.  It is not for them, they contend, to identify and respond to the passages which are allegedly defamatory.  Alternatively, as I apprehend counsel's submission, they would be content with particulars which identify the passages.  He relies on DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21 and Hadzel v De Waldorf [1970] 16 FLR 174. In the former case, a pharmaceutical company complained that it had been defamed in a lengthy article in the Sunday Times which alleged a fraud by a number of retail chemists. The statement of claim alleged false and malicious publication of and concerning the plaintiff of the article and identified it as delivered therewith. It claimed that the plaintiff was damaged thereby. Lord Denning MR, at 26, having set out the brief statement of claim, said:

"That is the whole of that statement of claim.  It is defective ¾ and I say it deliberately ¾ it is defective altogether for two reasons.

In the first place, there ought to have been an innuendo pleaded.  This article is capable of many different meanings ¾ so many that it was necessary for the fair conduct of the trial that there should be pleaded a 'popular' or 'false' innuendo, or whatever you like to call it.  In that innuendo the plaintiffs should set out the meaning or meanings which they say the words bear.  That is necessary, not only for the fair conduct of the trial, but also to enable the defendants to know what to plead, whether to plead justification or fair comment or to apologise.  I need not go through all the cases.  They are Allsop v Church of England Newspaper Ltd [1972] 2 QB 161; S & K Holdings v Throgmorton Publications Ltd [1972] 1 WLR 1036; and also Associated Leisure Ltd v Associated Newspapers Ltd, March 23, 1972, Bar Library Transcript No 95.  Those cases establish that in most cases, if not all, it is necessary for the plaintiffs, even when they rely only on the natural and ordinary meaning of the words, to plead an innuendo setting out what they say is the natural and ordinary meaning of the words.  This is just such a case.

In the second place, the pleading is defective because it throws ¾ and I use that word deliberately ¾ on to the defendants a long article without picking out the parts said to be defamatory.  Some of the article is not defamatory of anyone at all.  It describes only the method of importing drugs.  Other parts of the article are defamatory of some unnamed chemists, but not of the plaintiffs at all.  Yet other parts may be defamatory of the plaintiffs.  To throw an article of that kind at the defendants and indeed at the court, without picking out the particular passages, is highly embarrassing."

The Court of Appeal ordered that the pleading be struck out as embarrassing and defective.

It should be observed, however, that the article in that case was considerably longer than the press release identified here.  Furthermore, it contained material defamatory of other unnamed persons, as well as material potentially defamatory of the plaintiff, assuming that the plaintiff could be identified as the object of any defamatory imputation.  In addition, no precise imputation had been pleaded at all.

The Australian case of Hadzel v De Waldorf (supra) was a case of slander and concerned a speech published in the Polish language.  The statement of claim set out an English translation thereof and alleged that the Polish words used by the defendant meant and were understood by those to whom they were published as the words in the translation.  No innuendo was pleaded.  Fox J, at 184, referred to a decision of Meares J in Ellis v Grant (1970) 91 WN (NSW) 920 whereby he ordered a plaintiff in a defamation action to give particulars of the "precise imputations for which he will contend at the trial to be within the natural and ordinary meaning of the matter complained of and to be defamatory of him." Fox J then said:

"In my view the plaintiff should give particulars to the defendant of the defamatory imputations he relies upon.  The imputations should be expressed as precisely as possible and, as far as practicable, be related to particular words in the statement of claim."  [My emphasis.]

In the present case, the plaintiff has given precise particulars of the imputations, which neither of the plaintiffs in the two cases cited above had condescended to do.  She is not at fault in that respect.  In Hadzel v De Waldorf (supra) the learned judge went further and directed that they should be related to the particular words in the publication complained of.  Without having the benefit of a copy of that material, it is not possible to discern the precise reason why Fox J included that direction; but the press release here is not a difficult document to comprehend and I am not persuaded that the defendants would be in any way embarrassed in identifying the material constituting the alleged imputations or in responding to them.  I am not prepared to make either of the orders sought.