Mustard v Woodside Energy Ltd - [2012] WASC 461

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MUSTARD -v- WOODSIDE ENERGY LTD [2012] WASC 461

CORAM: LE MIERE J

HEARD: 29 OCTOBER 2012

DELIVERED : 4 DECEMBER 2012

FILE NO/S: CIV 1492 of 2012

BETWEEN: JILLIAN MUSTARD
Plaintiff
AND
WOODSIDE ENERGY LTD
Defendant

Catchwords:

Defamation - Practice and procedure - Application to strike out paragraphs of statement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 6 r 2, O 20 r 13A

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff: Mr R W Richardson
Defendant: Mr M C Goldblatt

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Lavan Legal

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

Allister v Martindale (Unreported, WASCA, Library No 950653, 29 November 1995)
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Anderson v Nationwide News Pty Ltd [2004] WASC 119
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Barham v Lord Huntingfield [1913] 2 KB 193
Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] EMLR 45
Buckeridge v Walter [2006] WASCA 22
Dare v Pulham (1982) 148 CLR 658
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Egg & Egg Pulp Marketing Board v KH Korp Tocumal Trading Co Pty Ltd [1963] VR 378
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Freer v Zeb [2008] EWHC 212 (QB)
Gourand v Fitzgerald (1888) 37 WR 55
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165
Jameel v The Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 6
Jeynes v News Magazines Ltd [2008] EWCA Civ 130
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IrR 166
L Grollo & Co Pty Ltd v Nu‑Statt Decorating Pty Ltd (No 2) (1978) 34 FLR 81
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Leitch v Abbott (1886) 31 Ch D 374
Mayfield‑Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419
Millar v Harper (1888) 38 Ch D 110
Monte v Mirror Newspapers [1979] 2 NSWLR 663
Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331
Russell v Stubbs Ltd [1913] 2 KB 200
Snelgrove v Great Southern Managers Australia Ltd (in liq) (Receiver and Manager Appointed) [2011] WASC 103
Taylor v Jecks (1993) 10 WAR 309
Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426
Wallis v Meredith [2011] EWHC 75 (QB)
Whyte v Ahrens (1884) 26 Ch D 717

LE MIERE J: The plaintiff was employed by the defendant as a commercial manager until October 2009. On 10 April 2011, Mr Voelte the Chief Executive Office of the defendant, in a speech to a seminar spoke words claimed by the plaintiff to be defamatory of her. The plaintiff says that in November 2011, the plaintiff and the defendant made an agreement to settle the plaintiff's defamation claim arising out of the words spoken by Mr Voelte to the seminar by, amongst other things, payment by the defendant to the plaintiff of $50,000 and a letter of apology (the Settlement Agreement). The defendant says that no binding agreement had been reached in respect of the plaintiff's defamation claim. The plaintiff seeks a declaration that a binding Settlement Agreement was reached and an order that the defendant specifically perform its obligations under the agreement.
In the alternative to her claim in relation to the Settlement Agreement, the plaintiff claims damages for defamation arising out of the words spoken by Mr Voelte to the seminar (the first matter complained of).
The plaintiff brings further defamation claims arising out of a Media Statement. The plaintiff says that in March 2011, the defendant published the Media Statement to various media outlets and the Media Statement contains words defamatory of the plaintiff (the second matter complained of).
The plaintiff brings further claims which are, in essence, claims that the defendant is legally responsible for the republication of the Media Statement on the Perth Now website (the third matter complained of), on the website of The West Australian newspaper (the fourth matter complained of) and in The West Australian newspaper (fifth matter complained of). The plaintiff claims damages against the defendant in respect of the second, third, fourth and fifth matters complained of.
The defendant has applied to strike out paragraphs of the statement of claim on the grounds that the paragraphs complained of disclose no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action.

Pleading of Settlement Agreement

The first paragraph of the statement of claim complained of is [5] which pleads the Settlement Agreement. Paragraph 5 pleads that the Settlement Agreement was made on or about 18 November 2011 between the plaintiff and the defendant whereby they agreed to the express terms pleaded in [5.1] to [5.5]. Particulars of the agreement say that it was made partly in writing and partly orally. The particulars are that insofar as it was in writing, the agreement was contained in an email and the email contained the terms pleaded in [5.1] to [5.4]. The particulars further state that insofar as it was oral, the agreement was made during the course of two telephone calls between the plaintiff and the executive vice‑president of the defendant on 16 and 18 November 2011. It is further pleaded that the conversations resulted in the term pleaded in [5.5] and the plaintiff's acceptance of the defendant's offer.
The defendant says that it is unclear what the plaintiff is pleading was the 'defendant's offer'; what the plaintiff alleges occurred during each of the telephone calls on 16 and 18 November 2011, on which she relies; or when the term pleaded in [5.5] of the statement of claim was agreed between the parties. The defendant says that the particulars of [5] are thus vague and embarrassing, and that the defendant is entitled to know what the plaintiff's case is in this regard with sufficient clarity to afford it a fair opportunity to meet it.
A statement of claim must contain the necessary particulars of any claim: Rules of the Supreme Court 1971 (WA) (RSC) O 20 r 13(1). A party is entitled to a statement of the opponent's case sufficiently clear to allow it a fair opportunity to meet it: Dare v Pulham (1982) 148 CLR 658, 664. The extent of particulars required to be provided must be assessed in the light of case management in this court as a result of which the case will not go to trial until orders have been made requiring the pre‑trial disclosure of the evidence that will be adduced at trial: Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [16] (Martin CJ).
The Settlement Agreement is pleaded with sufficient particularity. The agreement is a simple one. The statement of claim sets out the terms of the agreement and that it is partly oral and partly in writing. There are only five terms pleaded and each of them is simple and straightforward. Insofar as the agreement is in writing, it is pleaded to consist in a single document and the pleading identifies the document. Insofar as it is oral, it is said to have been made in two telephone calls and the pleading identifies the conversations, specifying the dates and the parties to the conversations. Those particulars are ample for the defendant to know the case it has to meet and prepare to meet that case.

Paragraph 11 ‑ Imputation arising from first matter complained of

Paragraph 11 pleads that the first matter complained of (words spoken at the seminar) meant and was understood to mean, in its ordinary and natural meaning, that:
… the plaintiff had been totally unreasonable in insisting that the defendant reinstate her to her identical employment position after taking six months leave of absence twice, notwithstanding that the defendant had restructured the department she worked in which meant that the only change to her employment position was that she was now three positions away from the Chief Executive Officer versus two.
The defendant says that the pleading is embarrassing because the imputation does not plead the precise act or condition asserted of, or attributed to, the plaintiff, or with which she is charged. Further, the defendant says that the pleaded imputation contains words that are irrelevant and unnecessary in that they are incapable of any derogatory meaning themselves and cannot otherwise have any purpose: Taylor v Jecks (1993) 10 WAR 309, 319.
The defendant says that the imputation appears to be to the effect that the plaintiff had acted unreasonably and the remainder of the pleaded imputation is irrelevant detail, which causes the defendant to not know whether it should deny the meaning, whether it should confess and avoid by admitting it but contending that it is not defamatory or seek to justify it or how otherwise to prepare its defence.
The plaintiff must plead 'the precise act or condition asserted of, or attributed to, the plaintiff, or with which [she] is charged': Monte v Mirror Newspapers [1979] 2 NSWLR 663, 678. The purpose of this requirement is to reduce any confusion as to what meaning the plaintiff contends for. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137, Gleeson CJ said that the court rules requiring specificity raised questions of degree and 'if a problem arises, the solution will usually be found in considerations of practical justice rather than philology'. The degree of specificity required should be decided in light of the published material, with reference to the appropriate test: whether confusion is likely about the plaintiff's alleged meaning.
There is an apparent tension between the defendant's objection that the imputation lacks precision on the one hand and its objection that it contains irrelevant material on the other hand. It is necessary to consider whether the pleading includes words that are not required for the purpose of conveying the imputation relied on.
In Taylor v Jecks Anderson J said:
As to the right of a party to have struck out of a pleading irrelevant and unnecessary allegations, it is part of the general rule that a party may not introduce into a pleading an allegation that may raise a false issue or that might obscure the true issue or that places the other party in the situation of not knowing the true nature and extent of the case he must meet. Bullen and Leake and Jacob's Precedents of Pleadings (12th ed) 146 ‑ 147.
Whilst not every immaterial or unnecessary allegation will deserve to be struck out of every pleading, insofar as innuendo paragraphs are concerned, I respectfully agree with the statement made by Hunt J in Monte v Mirror Newspapers Ltd (above) (at 678). His Honour said: 'What the plaintiff must plead as the imputation upon which he relies is, in my opinion, the precise act or condition asserted of, or attributed to, him, or with which he is charged.' I think it must follow from this requirement for precision that words that are not required for the purpose of conveying the imputation relied on should be struck out of the plea. There is no place for irrelevant detail in the pleading of innuendoes or imputations, if for no other reason than that it will nearly always leave the defendant not knowing what he must prove to justify the truth of that imputation: see Mayfield‑Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420 (319).
In Mayfield‑Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419, Hunt J said:
If the imputation upon which the plaintiff relies is to express (as it must) the precise act or condition asserted of or attributed to the plaintiff or with which he is charged … then the addition within that imputation of detail which may or may not be material to what must be proved by the defendant in order to justify the truth of that imputation … is embarrassing to the defendant and will be struck out …(420).
The first matter complained of commences by referring to flexible working arrangements at Woodside. The speaker then referred to a case where an employee returned after six months leave and 'reported one person away more from the top because we had restructured the department' and that was unacceptable.
The pleaded imputation has four elements:
1.the plaintiff had been totally unreasonable;
2.the plaintiff had insisted that the defendant reinstate her to her identical employment position after taking six months leave of absence twice;
3.the defendant had restructured the department the plaintiff worked in; and
4.the only change to the plaintiff's employment position was that she was now three positions away from the CEO versus two.
Counsel for the plaintiff, Mr Richardson, submitted that the first element is an inference drawn from the other three elements. A number of cases have drawn a distinction between implications and inferences. Hunt CJ at CL explained in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158:
An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader … adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader … from what has been expressly or impliedly said by the publisher. (167) (Mason P & Handley JA agreeing).
Mr Richardson submitted that elements 2, 3 and 4 are the facts stated by the speaker and element 1 is the inference which reasonably follows from the facts stated. I accept that argument. The first element is not expressly stated by the speaker. It is an inference to be drawn by the listener. The last three elements describe the nature of the plaintiff's conduct whilst the first element refers to its quality. Each of the second, third and fourth elements are relevant to the nature of the plaintiff's conduct. The second element is necessary for the purpose of conveying the imputation relied on. It is the plaintiff's conduct in insisting that the defendant reinstate her to her identical employment position after taking six months' leave of absence twice which is the act asserted of the plaintiff. The defendant did not argue otherwise. The defendant submitted that the third and fourth elements are unnecessary for the purpose of conveying the imputation relied upon. I do not agree. The fourth element is, in effect, that the change to the plaintiff's employment position on her return from leave is minimal. Arguably, the plaintiff's insistence on being reinstated to her identical employment position would have a different quality if there was a greater difference between her position before going on leave and her position after returning from leave. The third element is also relevant to the imputation relied on. The plaintiff's conduct in insisting that she be reinstated to her identical employment position after taking six months leave of absence would have a different quality if the identical position remained for her to return to than if it did not. Arguably the plaintiff's insistence on being reinstated to her identical employment position which no longer existed would have a different quality if the position no longer existed because of a workforce restructure than if it had been abolished for some other reason.
The imputation in [11] of the statement of claim is different from those considered in Mayfield‑Smith v Mirror Newspapers and Taylor v Jecks. In Mayfield‑Smith v Mirror Newspapers the plaintiff, a trainer, complained of a publication that an apprentice, named Dufficy, had said to the stewards that the plaintiff had threatened him in these terms:
If you ever hit my horse over the head with a whip I'll hit you over the head.
The plaintiff pleaded, amongst others, an imputation that the plaintiff had threatened apprentice Dufficy by saying 'I'll punch you'. Hunt CJ said that counsel for the plaintiff had been unable to suggest how there is any difference in substance between the imputation referred to and one which omits the words 'by saying I'll punch you'. Hunt J held there was no justification for retaining those additional words.
Taylor v Jecks concerned an article in The West Australian newspaper which stated that the plaintiff, a university vice‑chancellor, 'doesn't believe in belt tightening when it comes to overseas travel' and went on to refer to the plaintiff going on 'an overseas jaunt flying first class'. The plaintiff pleaded a number of imputations including that he 'had used the university's money unreasonably or extravagantly by travelling overseas by first class air travel'. Anderson J, with whom Kennedy and Franklyn JJ agreed, struck out the words 'by travelling overseas by first class air travel' on the ground that 'they are manifestly not capable of any derogatory meaning themselves and cannot otherwise have any purpose'.
This case is quite different. Each of the second, third and fourth elements to which I have referred make up the conduct attributed to the plaintiff by the defendant. The defendant submits that the third and fourth elements are unnecessary. I do not agree. It is the alleged facts that the defendant had restructured the department the plaintiff worked in and that the only change to her employment position was that she was now three positions away from the chief executive officer versus two which made her conduct in insisting that the defendant reinstate her to her identical employment position, rather than that to which she was reinstated, conduct which arguably tends to lower her in the estimation of others or is to her discredit.
The defendant further says that it does not know what it must prove to justify the imputation. I do not agree. The defendant must prove the truth, in substance, of each of the second, third and fourth elements of the imputation that I have described. Whether or not such conduct is unreasonable or otherwise to the plaintiff's discredit and whether the attribution to the plaintiff of that conduct would lower the plaintiff in the estimation of others is a conclusion to be drawn from what the plaintiff is said to have done.
In summary, I will not strike out [11].

Paragraph 12.1 - Imputation embarrassing

Paragraph 12 of the statement of claim pleads that two imputations said to arise from the first matter complained of (the words spoken at the seminar). The defendant says that each of the imputations are embarrassing, ambiguous or unclear and should be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action.
The imputation pleaded at [12.1] is that 'the plaintiff had made a wholly unjustifiable claim of sexual discrimination against her employer'. The defendant submits that the imputation is embarrassing, ambiguous or unclear because of its use of the 'weasel' word 'unjustifiable'. The defendant submits that 'unjustifiable' has a wide gradation of meanings. The spectrum ranges from a meaning of simply being wrong through the absence of sufficient legal reason to unpardonable or inexcusable.
Language is such an imprecise thing that many words may carry a range of reasonable meanings. In the defamation lexicon a weasel word is one which has a variety of meanings so that it is ambiguous or equivocal. Unjustifiable and justifiable are such words. The Online Oxford English Dictionary gives two principal definitions of justifiable. The first is 'capable of being legally or morally justified, or shown to be just, righteous, or innocent; defensible'. The second is 'capable of being maintained, defended, or made good'. The first of those meanings itself covers a range of meanings.
Imputations must be understood and construed in the context of the whole matter complained of: Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 [18] ‑ [22] (Mason P with whom Wood CJ at CL agreed). The imputation pleaded at [12.1] is an innuendo meaning. The extrinsic facts relied upon to give rise to the innuendo meaning are those pleaded at [10.1] to [10.8]. Those extrinsic facts include the following. The plaintiff had commenced proceedings in the Australian Human Rights Commission against the defendant alleging that the defendant had engaged in discrimination against her in her employment because of her sex. Articles concerning the plaintiff and her claim of sexual discrimination against the defendant had been published in The Sunday Times and The West Australian newspapers and on the Perth Now and The West Australian newspaper websites.

In the context of the whole matter complained of the imputation that the plaintiff had made a wholly unjustifiable claim of sexual discrimination against her employer has a variety of meanings. It might mean that her claim was not legally justified in the sense that it would fail or that the defendant had a good defence or it might mean that the claim had no reasonable prospects of success. It might mean that the plaintiff's claim was not morally justified or it was not morally just or righteous for her to bring the claim even if it might succeed. The defendant does not know what it will have to prove to 'justify' the imputation, that is, prove it to be true. The imputation pleaded in [12.1] will be struck out.

Paragraph 12.2 - Imputation embarrassing

The imputation pleaded in [12.2] is that the plaintiff 'had behaved in a grossly unfair manner by commencing legal proceedings against the defendant because, after taking six months maternity leave twice, she was not reinstated to her identical position because her reporting position had changed from two to three positions away from the Chief Executive Officer'.
The defendant submits that this imputation suffers from the same deficiencies as the imputation pleaded in [11]. It is said to lack the necessary precision and distillation; not to plead the precise act or condition asserted of, or attributed to, the plaintiff, or with which she is charged; and to contain words which are manifestly incapable of any derogatory meaning themselves and cannot otherwise have any purpose.
I do not accept that submission. The imputation has three elements:
1.The plaintiff behaved in a grossly unfair manner;
2.The plaintiff commenced legal proceedings against the defendant;
3.The defendant commenced the proceedings because after taking six months' maternity leave twice she was not reinstated to her identical position because her reporting position had changed from two to three positions away from the Chief Executive Officer.
The second and third elements describe the conduct attributed to the plaintiff. The first element is an inference or conclusion said to be drawn by the listener aware of the extrinsic facts from the first matter complained of. Each of the second and third elements form part of the conduct attributed to the plaintiff. The third element is not irrelevant. The imputation would be different if the third element was omitted from the imputation.

Paragraph 15 ‑ Publication to media outlets

In [15] the plaintiff pleads that the defendant published the second matter complained of (the Media Statement) to 'various entities of the print and electronic media, including without limiting the generality of the foregoing, The Sunday Times newspaper, The West Australian newspaper and website and the Perth Now website, and the publishers thereof'.
The defendant submits that the words 'including without limiting the generality of the foregoing' are embarrassing. The defendant says that if the plaintiff intends to rely upon publication to entities of the print and electronic media not mentioned in [15], they should be expressly identified by her in her statement of claim.
The plaintiff says that the pleading is permissible because only the defendant knows to whom the Media Statement, that is the second matter complained of, was published; the plaintiff says that the identity of the persons to whom the Media Statement was published will come out in discovery.
The court has a discretion to order discovery before the giving of particulars: Egg & Egg Pulp Marketing Board v KH Korp Tocumal Trading Co Pty Ltd [1963] VR 378; Millar v Harper (1888) 38 Ch D 110, 112; L Grollo & Co Pty Ltd v Nu‑Statt Decorating Pty Ltd (No 2) (1978) 34 FLR 81, 91 ‑ 92. A well accepted situation in which the court often exercises its discretion by ordering discovery before particulars are supplied is that in which the party which seeks particulars and resists discovery is alone in possession of the relevant documents: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426, 439 (Lindgren J).
In Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566, the respondent commenced an action against the appellants for damages for breaches of obligations under a written contract. In allowing an application to amend the statement of claim, the master ruled that although those paragraphs of the statement of claim sought to be amended were deficient in not providing all material facts, they could nevertheless be had by way of particulars. Further, the respondents did not have the details sought, they being solely within the knowledge of the applicants. An appeal to the Full Court was dismissed. Franklyn J, with whom Walsh J agreed, said at 570:
There is authority for the proposition that when one party knows the facts and the other does not, an insufficiently particularised allegation may be made in a statement of claim and the plaintiff be permitted to obtain discovery of documents and answers to interrogatories before providing the necessary particulars: see Whyte v Ahrens (1884) 26 Ch D 717, 720; Foamlite Australia Pty Ltd v Campbell (Unreported, Full Court, Supreme Court, WA, Library No 7686, 31 May 1989; Seaman in Civil Procedure in WA, par 27.1.10.
See also Snelgrove v Great Southern Managers Australia Ltd (in liq) (Receiver and Manager Appointed) [2011] WASC 103 [54] ‑ [55].
The essence of a cause of action in defamation is publication to a third party of the matter alleged to convey the defamatory imputations. The essential element of publication is reflected in O 6 r 2 of the RSC, which provides that in an action for libel the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified. Order 20 r 13A makes specific provision in relation to some particular matters in defamation actions. That rule relates to the pleading of innuendo meanings, the pleading of fair comment and justification, and the pleading of malice. Apart from specific provisions in the rules relating to defamation actions, the rules relating to pleadings and discovery apply to defamation actions as to actions generally. There is no hard and fast rule as to the class of case in which all material facts must be pleaded before discovery, or discovery be ordered before further particulars or material facts are pleaded. The judge must exercise a reasonable discretion in every case after carefully looking at all the facts and taking into account any special circumstances. That principle has been applied to fraud cases, where the courts conventionally take a strict approach to pleading: Whyte v Ahrens (1884) 26 Ch D 717; Leitch v Abbott (1886) 31 Ch D 374; Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331 [32] ‑ [33].
Gatley on Libel and Slander discusses the issue at [28.7] of the 11th edition, where the learned authors say the following about publication to persons unknown:
If the claimant does not know the name of the person or persons to whom publication is alleged, the latter must nevertheless be sufficiently described as to enable them to be identified. In very exceptional cases, particulars of claim may be permitted to stand notwithstanding that they fail adequately to identify the circumstances in which or the person or persons to whom the defamatory words are alleged to have been published. This may arise, for example, where the particulars of publication are essentially within the knowledge of the defendant and not of the claimant. [Footnote 29 ‑ Gourand v Fitzgerald (1888) 37 WR 55, 265; Keogh v Incorporated Dental Hospital [1910] 2 IrR 166; Peck v La Valley [1929] 2 DLR 370; Paquette v Cruji (1979) 26 OR 294.] The proper course for the claimant in such a case is to plead the best particulars which he can give and to await disclosure or to seek or apply for further information from the defendant as to the identity of the person or persons to whom the words were published. The court will not, however, entertain an action of a speculative nature and such a course will only be permitted where the claimant can show by uncontradicted evidence that publication by the defendant has taken place. If he cannot do this, the court will order particulars of the names and addresses of the person or persons to whom publication is alleged, or in default that the allegation be struck out. [Footnote 32 ‑ Mutual Life v National Mutual [1909] VLR 445, Barham v Huntingfield [1913] 2 KB 193 at 197, 199, where the case of Russell v Stubbs [1913] 2 KB 200n is discussed and distinguished; Davies v Rolleston (1920) 149 LTJ 84; [1920] WN 29 CA; McCarter Burr v Harris [1922] 1 WWR 677; Irish Society v City of Dublin Assurance [1928] IrR 204; Quann v Chatham (1991) 107 NBR 392 at 406.] It will not in such circumstances postpone the provision of further information until after disclosure [28.7] (footnotes 30 and 31 omitted)
In Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IrR 166, the Court of Appeal of Ireland held that there was no established practice in England for ordering particulars of the publication relied on by the plaintiff and refused an order for particulars in circumstances where the particulars of publication (if any) must be known to the defendant. In Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188, Hunt J declined to follow Gourand v Fitzgerald (1888) 37 WR 55 and Keogh v Incorporated Dental Hospital of Ireland on the ground that they are 'the product of an outmoded approach to the question of what particulars must be furnished in actions of tort'.
Russell v Stubbs Ltd [1913] 2 KB 200 was an action for libel. The defendants carried on business as the proprietors of Stubbs' Weekly Gazette and provided credit reports on persons engaged in trade to their subscribers. The plaintiff pleaded that the defendant had published a report as to the plaintiff's financial position to a named person and to other persons whose names are unknown to the plaintiffs. Before the Court of Appeal the plaintiffs relied upon an affidavit within which the deponent swore that in a telephone conversation he was told that the defendants had issued a bad report and on request from the plaintiff's solicitors the defendants had provided to them a copy of a report on the plaintiffs. The Court of Appeal restored the order of the Master that the plaintiffs give particulars of the persons to whom the libel was published after discovery. The Court of Appeal was satisfied that the pleading was not a mere fishing allegation in connection with which they wished to get discovery before going on with the case. Sir Gorell Barnes, President said:
…the real question which we have to determine is whether there is anything unreasonable in allowing the plaintiffs to have discovery which will enable them to show that this libel was published to somebody whom they specify or to other persons who have had exactly the same information sent to them by the defendants. Although the point may perhaps not be exactly covered by any of the authorities which have been cited to us and may to some extent be said to be novel, I think that having regard to the position of the parties, the plaintiffs being engaged in a trade and having information given about them by the defendants, whose business it may be to give information of that kind, if it is alleged that that information was given to some specified person or company, but with uncertainty on the part of the plaintiffs as to whether they can clearly establish that it was given to the particular person specified or to some clerk or person connected with the company, there is no hardship on the defendants or unreasonableness in placing the plaintiffs in the position of being able to say, 'We are going to prove this, and, from the discovery which we expect to get from you, we also intend to prove that you published the report in identical terms at the same time to some other person or persons.' To my mind that is not unreasonable, and I think it is within the principle which has been discussed and laid down in several of the cases, and I cannot myself see that it inflicts any hardship whatever upon the defendants. They must know perfectly well whether they have published this alleged libel, and to whom, if any one, they have published it, and the allegations in the latter part of paragraph 4 of the statement of claim can present no difficulty or embarrassment to the defendants in framing their defence. They may say that they did not publish the report to any one, or that they did publish it and it is true, or that they only published it to persons on occasions which made it a privileged communication. I cannot see that the defendants will have any difficulty whatever in meeting the plaintiffs' case, no matter to whom publication was made, provided that it is confined, as the plaintiffs' counsel have stated in this Court that they are content it should be confined, to publication at the particular time and in the express and particular terms set out in the statement of claim (203).
An appeal to the House of Lords was dismissed. Lord Loreburn LC said that the question was one of discretion 'for it is undoubted that such a discovery can in some cases be allowed'. Lord Loreburn said:
This is a case in which a specific libel is alleged - in which the matter that is arrived at by discovery is wholly in the knowledge of the defendants. There is a prima facie case of the publication of the libel complained of by the defendants. A probability, from the nature of the business carried on by the defendants, that the statements would be made or sent to all who asked for them if they were subscribers, is established in fact by the circumstance that the defendants did make the same communication to the plaintiffs' solicitors when they asked for it. Under these circumstances I think, as I have said, that this is a case in which the discretion used by the Court of Appeal was perfectly sound, and it seems to me that I ought to say so (205 - 206).
Russell v Stubbs was distinguished by the Court of Appeal in Barham v Lord Huntingfield [1913] 2 KB 193. The plaintiff pleaded that on a day at the end of 1910 or early in 1911 the defendant published specified defamatory words to Le Grys and further during the years 1910, 1911 and 1912 the defendant published similar words. The plaintiff stated that she could not give particulars until discovery. The plaintiff sought to interrogate the defendant as to the names of persons to whom publication had been made. The interrogatories were disallowed. Kennedy LJ said that Russell v Stubbs was distinguishable from the case before the court where it was sought to administer interrogatories of a fishing character. Kennedy LJ said:
In the present case there is nothing before the court to show any foundation whatever for the suggestion that the defendant has uttered any defamatory statements of the plaintiff beyond the one particularised in the statement, and the plaintiff is endeavouring by means of these interrogatories to find out whether at any time during a period of three years the defendant has said the same thing or substantially the same thing to other persons. The plaintiff's application is not based on sworn evidence as to there having been other publications, as was the case in Russell v Stubbs but on a mere allegation unsupported by evidence (198).
The Full Court considered the specificity required in pleading publication of a defamation in Allister v Martindale (Unreported, WASCA, Library No 950653, 29 November 1995). The Full Court dismissed the appellant's appeal, by leave, against the decision of a master dismissing the appellant's application to strike out [4] of the statement of claim which was in these terms:
4.On a date or dates unknown between 26 July 1990 and 13 August 1990 the first defendant wrote and published of and concerning the plaintiff to an officer or employee of the company, or alternatively spoke and published of and concerning the plaintiff in the way of his occupation and in relation to his conduct therein to an officer or employee of the company during the period the following words:
…
Kennedy J, with whom Rowland and Owen JJ agreed, said:
Importantly, the respondent in this case has identified with precision the words allegedly spoken by the appellant. At this stage, on the face of it, he does not know whether those words were written or spoken. If they were spoken, and if they were held to be defamatory, they would, on the basis of the alternative claim, be actionable per se. The precise time of the publication is not pleaded, but it is placed within a relatively brief period of time. It is not known whether the words complained of were spoken or written on the one occasion. The respondent has not identified the person to whom the words were published, but that person has at least been identified to the extent of being described as an officer or employee of the company. It cannot fairly be said that the respondent could only be guessing or speculating as to what, if anything, was said or written. Subject to what follows, I would not be prepared to interfere with the discretion of the learned Master in relation to para4 of the statement of claim. On its face it is not a substantially speculative claim ‑ cf Collins v Jones [1955] 1 QB 564 ‑ and to deny the respondent the right to proceed with it would be capable of working a grave injustice on him. The denial of the striking out application would not, in my view, impose any injustice on the appellant.
The issue was considered by Sharp QC sitting as a deputy Judge of the Queens Bench Division in Freer v Zeb [2008] EWHC 212 (QB) [31]:
If a claimant does not know the name of the persons to whom publication was made, the court may, exceptionally, allow the claim to stand if it is unreasonable to require a claimant to identify the publishees, or the claim may be to allowed stand pending disclosure or the provision of further information by the defendant(s) which it is reasonable to suppose will identify the publishee concerned. However, it is clear that the court will only follow this course in either case where the claimant can show by uncontradicted evidence that publication by the defendant has taken place and that he has a good cause of action in defamation (see Best v Charter Medical of England Ltd [2001] EWCA Civ 1588 at [11] to [13]; Bareham v Huntingfield (Lord) 2 KB 193 CA and Russell v Stubbs [1913] 2 KB 200n). In the absence of such evidence, the claim is merely speculative. As Lord Justice Keene said in Best at [13]:
'I conclude that the exception to the normal rule [that a claimant must set out in the particulars of claim the name of the persons to whom the words were spoken, and the exact words used] only operates where the claimant can satisfy the court that he has a good cause of action, because there is credible evidence that the defendant on a particular occasion and to a particular person made a defamatory statement about him of a specified nature. Unless there is evidence that there is a good cause of action in defamation, an order for further information under CPR Part 18 would indeed be a fishing expedition …'.
The statement of Sharp QC in Freer v Zeb was stated with approval by Clarke J in Wallis v Meredith [2011] EWHC 75 (QB).
I draw the following principles or guidelines from the authorities:
1.publication is an essential element in a defamation action;
2.a plaintiff in a defamation action must plead sufficient particulars to enable the publications in respect of which the action is brought to be identified;
3.the court has a discretion to order discovery before a party is required to provide further particulars or a pleading is struck out for failure to plead all of the necessary material facts;
4.a well accepted situation in which the court often exercises its discretion by ordering discovery before particulars, or striking out for lack of material facts, is that in which the party which seeks particulars or to strike out the statement of claim is alone in possession of the relevant documents;
5.a court will be cautious before permitting a plaintiff to obtain discovery before identifying in his pleading each of the persons to whom the defamation was published;
6.the court will not permit a plaintiff to obtain discovery before adequately pleading publication if the plaintiff is fishing for a case;
7.the court may permit a plaintiff to obtain discovery before identifying in his pleading each of the persons to whom the defamation was published where the plaintiff establishes that the defendant has published the defamation to some person or persons and all of the persons to whom the defendant published the defamation is solely within the knowledge of the defendant.

In this case the allegedly defamatory material is a Media Statement. The plaintiff has identified two newspapers and two news websites to whom, or the publishers of which to whom, the news release was published. The plaintiff has pleaded sufficient material facts to make out a cause of action against the defendant in respect of publication of the Media Statement.
Paragraph 15 of the statement of claim insofar as it pleads publication to unnamed print and electronic media is deficient. The publication to each media outlet is a separate cause of action. The identity of the person to whom the defamation is published is a material fact. However, the court has a discretion not to strike out the deficient pleading and allow the plaintiff to obtain discovery and an opportunity to amend the pleading after discovery. The discretion should only be exercised if there is reason to believe that the plaintiff may have a cause of action against the defendant for publishing the Media Statement to media outlets other than those specifically pleaded in [15].
The plaintiff has not put on affidavit evidence that the defendant has published the Media Statement to the publishers of the Perth Now website, News Ltd or Nationwide News Pty Ltd or to the publishers of The West Australian newspaper and its website. However, the plaintiff has pleaded the republication of the Media Statement in The West Australian newspaper, on the websites of The West Australian newspaper and Perth Now, and has pleaded the words published in that newspaper and on those websites. I am satisfied that the plaintiff is able to adduce evidence of the publication of the Media Statement. It would be a waste of the resources of the parties and the court and contrary to the provisions, and objects of O 1 r 4A and 4B of the RSC to require the plaintiff to put on affidavit evidence to that effect.
I find that the plaintiff may have a cause of action against the defendant for publishing the Media Statement to other media organisations. The Media Statement refers to News Ltd Newspapers. However, the Media Statement was sent to at least one organisation other than News Ltd media ‑ the publishers of The West Australian newspaper and its website. It is reasonable to infer that it may have been sent to other media organisations.
It is not unduly burdensome to require the defendant to give discovery before [15] of the statement of claim is further particularised. The defendant will be required to give discovery only of documents relating to a single Media Statement. This does not inflict any hardship on the defendant. The defendant knows to whom it sent the Media Statement. The allegations in [15] of the statement of claim can present no difficulty or embarrassment to the defendant in drafting its defence. It may plead that it did not publish the Media Statement to anyone other than those specifically named, or to only some or none of them, or that they did publish it to others. The defendant may, if it is proper to do so, plead that the matter complained of is true or that it only published it to persons on occasions which make it a privileged communication. I cannot see that the defendant will have any difficulty in pleading to [15] of the statement of claim which is confined to publication in the express and particular terms set out in that paragraph.
Having regard to the principles of case management that apply in this court and in particular to the provisions and objects of O 1 r 4A and 4B it is not appropriate to require the plaintiff to further particularise her plea of publication in [15] of the statement of claim before she obtains discovery and it is not appropriate to strike out her current pleading before she has obtained discovery. I will not strike out [15] of the statement of claim. However, the defendant may renew its application after it has given discovery if the plaintiff does not then amend the pleading or does so but the defendant considers the pleading remains deficient.

Paragraph 17 ‑ Imputations from Media Statement

The second matter complained of (the Media Statement) commences with the statement:
News Limited Newspapers yesterday carried a story claiming Woodside has settled a claim by a former employee alleging she was demoted after taking parental leave.
Woodside strongly denies this allegation.
After referring to Woodside's support for employees taking parental leave the Media Statement refers to 'the case reported yesterday' and says:
… the employee was not demoted at any stage in her time with our company.
Woodside was willing to consider settling the case with the former employee because the company wanted an amicable outcome to the woman's claim. In hindsight, this was a mistake. News reports have created a misleading impression about the support Woodside provides to working parents.
Woodside is no longer prepared to settle. We are comfortable for the Federal Magistrates Court to determine the woman's claims.
Paragraph 17 then pleads the imputations alleged to arise from the second matter complained of (Media Statement).

Imputation 17.2

Imputation 17.2 is that the plaintiff:
had lied to a Sunday Times journalist when she told the journalist that her claim against the defendant for sexual discrimination had been settled.
The defendant says that the imputation suffers from the same deficiencies as [11] of the statement of claim in that it lacks the necessary precision and distillation; does not plead the precise act or condition asserted of, or attributed to, the plaintiff, or with which she is charged, and contains words which are manifestly incapable of any derogatory meaning themselves and cannot otherwise have any purpose. I do not accept that argument. The meaning of the imputation is clear. It sets out the precise act asserted of the plaintiff. It does not contain any words incapable of any derogatory meaning.
The defendant further argues that the second matter complained of in its ordinary and natural meaning, is not capable of giving rise to the meaning pleaded. The defendant says that there is no mention in the second matter complained of:
1.that the plaintiff had spoken to a Sunday Times journalist;
2.that the plaintiff had said anything to a Sunday Times journalist;
3.that the plaintiff was the source of the story in the News Ltd newspapers; or
4.that the relevant claim was a sexual discrimination claim.
The principles to be applied by the court on an application such as this one are not controversial. In deciding what meaning words are capable of bearing for the purposes of libel the court must have in mind the guidance given in numerous authorities, summarised conveniently by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]:
The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non‑defamatory meanings are available. (3) Over‑elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' … (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'
In Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] EMLR 45 at [16], Sedley LJ said:
The real question in the present case is how the courts ought to go about ascertaining the range of legitimate meanings … Such an exercise is an exercise in generosity, not in parsimony.
In Jameel v The Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 6 [14], all members of the court agreed with Simon Brown LJ, who said:
… every time a meaning is shut out (including any holding that the words complained of either are, or are not, capable of bearing a defamatory meaning) it must be remembered that the judge is taking it upon himself to rule in effect that any jury would be perverse to take a different view on the question. It is a high threshold of exclusion. … the meaning of words in civil as well as criminal libel proceedings has been constitutionally a matter for the jury. The judge's function is no more and no less than to pre‑empt perversity. That being clearly the position with regard to whether or not words are capable of being understood as defamatory or, as the case may be, non‑defamatory, I see no basis on which it could sensibly be otherwise with regard to differing levels of defamatory meaning. Often the question whether words are defamatory at all and, if so, what level of defamatory meaning they bear will overlap.
It is arguable that a reader of the Media Statement would infer from the first sentence that the plaintiff had spoken to a Sunday Times journalist or that the plaintiff was the source of the News Ltd Newspapers story. There are, of course, other logical possibilities. However, my task is to delimit the range of meanings of which the words are capable and to rule out any meanings outside the range. The meaning within that permissible range the words actually bear is a matter for trial.
Arguably, a reader would have understood that the plaintiff's claim against Woodside was a claim of sexual discrimination. The matter complained of does not say that; it says that she alleged 'she was demoted after taking parental leave'. However, the taking of parental leave is, or is popularly thought to be, a characteristic that appertains generally to women, and accordingly less favourable treatment on the ground that a woman has taken parental leave, can, or it is popularly thought that it can, amount to discrimination on the basis of sex.
The defendant says that the imputation that the plaintiff had lied is not capable of arising from the second matter complained of. The defendant says that a statement by a person that she has entered into an agreement with another person and a denial by the latter person that such an agreement was entered into, is not capable of conveying an imputation that the former person is lying: Anderson v Nationwide News Pty Ltd [2004] WASC 119.
In Anderson v Nationwide News Master Newnes said:
In the ordinary course, simply a statement by A that he contracted with B and a denial, even an emphatic denial, by B that there was such a contract, is not capable of conveying an imputation that A is lying. I do not think there is anything in the context in the present case that gives a different complexion to the exchange [13].
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 concerned an allegedly defamatory newspaper article published by the respondents that reported the unexplained destruction of a multimillion dollar house by fire, against the background of a heavily contested application to develop the site into a five storey residential complex. At trial the appellants were unsuccessful in arguing that the article was capable of bearing, amongst others, the imputation that one of the appellants had misrepresented the neighbours' reactions to the proposed development. The imputation was based on an apparent inconsistency between what the second appellant was reported to have said (we provided copies of the development plans to neighbours and they were fine about it) and what the neighbour said (none of us are happy about the application). Gleeson CJ, McHugh, Gummow and Heydon JJ said:
A report that the second appellant gave an account of neighbourhood reaction to the development proposal different from that of her neighbours, if it stood alone, might mean no more than that there were two different points of view [17].
However, their Honours held that when the article was taken as a whole it was capable of conveying the imputation. The second appellant's bland assurance that the neighbours 'were fine about [the development]' was presented by way of contrast with general disapproval and indignation on the part of the neighbours. There was also a possible suggestion that, in a context where she was attempting to deflect attention from the development proposal, the second appellant was seeking to mislead. The development proposal was categorically stated to be 'controversial'. Their Honours said that it seems highly improbable that the second appellant would have been unaware of the controversy and noted that the unhappiness of all the neighbours was a substantial theme of the article. Their Honours observed that whilst a report that the second appellant gave an account of neighbourhood reaction different from that of her neighbours, if it stood alone, might mean no more than that there were two different points of view, a different impression may be created when the report appears in the context of an account of a suspicious fire, the grounds for suspicion being based on the development proposal. Their Honours said that:
Ultimately, the question is what a jury could properly make of it [17].
An imputation will be struck out only if it is plainly incapable of being conveyed by the words complained of or if the imputation is so clearly untenable that it cannot possibly succeed: Buckeridge v Walter [2006] WASCA 22 [2] (Steytler P). In Favell v Queensland Newspapers Pty Ltd Gleeson CJ, McHugh, Gummow and Heydon JJ, approved the following extract from the judgment of McPherson JA in the Queensland Court of Appeal:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken [6].
According to standard definitions of lying, lying requires that a person make an untruthful statement, which is a statement that the person believes to be false. If a person who makes a statement does not believe that statement to be false, then she cannot be lying, even if the statement is false.
It is arguable that a reader of the second matter complained of would understand it to mean that Woodside had not settled the plaintiff's claim and hence the statement that it had was false. However, there is nothing in the second matter complained of that implies, or from which a reader could reasonably infer, that the plaintiff believed the statement that Woodside had settled the claim was false. The article may be understood as saying that Woodside had offered to settle the claim. It says that Woodside was willing to consider settling the matter but that it is no longer prepared to settle. A reasonable reader would understand that a person may honestly but mistakenly believe that an agreement has been made or a settlement reached. There is nothing in the second matter complained of to imply, or from which it might be inferred, that the plaintiff believed that the case had not been settled.
Imputation 17.2 will be struck out.

Imputation 17.3

Imputation 17.3 is that the plaintiff had lied to a Sunday Times journalist when she told the journalist that she had been demoted twice by the defendant as a result of taking maternity leave. A reasonable reader might understand the second sentence (Woodside strongly denies this allegation) to be a reference to the statement in the first paragraph that a former employee had alleged she was demoted after taking parental leave. However, the second matter complained of is not capable of giving rise to the imputation that the plaintiff had lied for the same reasons that imputation 17.2 is not capable of arising.
Imputation 17.3 will be struck out.

Paragraph 20

Paragraph 20 pleads that the third matter complained of was caused to be published by the defendant on the Perth Now website. The third matter complained of is entitled 'Six Figure Payout for WA Exec who was "demoted for being pregnant".' There is a photograph of the plaintiff above the words 'Discrimination: Former Woodside mining executive Jill Mustard wins a six‑figure payout for discrimination after taking maternity leave'. There then follows a story about the plaintiff's claim that she 'was twice demoted when she took maternity leave'. The story includes quotations attributed to the plaintiff and her lawyer. The last part of the story consists of the second matter complained of (the Media Statement) which appears after the words 'a statement released by Woodside on Sunday morning, the day after the story's publication, said:'.
Paragraph 21 pleads that the republication of the third matter complained of by Perth Now was an intended consequence of the publication of the Media Statement by the defendant, alternatively, the natural and probable consequence of the publication of the Media Statement by the defendant.
The defendant says that the pleading in [20] is untenable because the third matter complained of as a whole is something very different from the second matter complained of (the Media Statement).
I first observe that the plea in [21] is erroneous insofar as it refers to the republication of the third matter complained of by Perth Now. The plaintiff does not claim that the defendant published the third matter complained of to Perth Now and Perth Now republished the third matter complained of on its website. The only claim of republication could be a claim that the publication of the third matter complained of by Perth Now was a republication of the second matter complained of by the plaintiff.
That part of the third matter complained of which is not contained within the second matter complained of (the Media Statement), which I will refer to as the additional material, should be struck out. The statement of claim does not plead any facts which make the defendant responsible for the publication of the additional material. It is apparent on the face of the third matter complained of that at least some of the additional material came from sources other than the Media Statement. The additional material includes the statements attributed to the plaintiff and which are introduced with the words 'speaking to The Sunday Times yesterday, she said'. The additional material also includes statements attributed to the plaintiff's lawyer and to the WA Equal Opportunity Commissioner. The additional material appears to be unnecessary in any event. The imputations which the plaintiff says arise from the third matter complained of are the same imputations that are pleaded to arise from the second matter complained of (the Media Statement). There is one qualification to that point. The third matter complained of identifies the plaintiff by name and photograph whereas the second matter complained of does not. It would be permissible for the plaintiff to plead those parts of the additional material which identify the plaintiff.
In their present form [20] and [21] should be struck out.

Paragraph 22

Paragraph 22 pleads three imputations alleged to arise from the third matter complained of. They are in substance the same as the imputations pleaded in [17] and should be struck out for the same reasons.

Paragraph 25

Paragraph 25 pleads that the defendant caused to be published on the website of The West Australian newspaper under the heading 'Woodside withdraws settlement offer for mum' the fourth matter complained of.
The article commences:
Resource giant Woodside today upped the ante in its legal battle with a female former executive who claims she was sidelined after taking maternity leave.
The Perth‑based company has withdrawn a reported six‑figure settlement after the woman, Jill Mustard, outlined her allegations in a weekend newspaper.
The article then says that Woodside issued a statement asserting that the company denied the claims and labelled its efforts towards an 'amicable outcome' with Jill Mustard 'in hindsight … a mistake'. The article then says that Ms Mustard had told the newspaper she had been 'sidelined' from professional opportunities after taking parental leave and described Woodside as a 'boys club' and says that it was reported that Ms Mustard had accepted a six‑figure settlement payout from the company as a result of her discrimination claim. The article then says 'but today Woodside revealed the settlement offer was no longer on the table'. The remaining part of the article contains the words in the Media Statement.
Paragraph 26 pleads that the republication of the fourth matter complained of on The West Australian website was the intended consequence of the publication of the Media Statement by the defendant, alternatively, the natural and probable consequence of the publication of the Media Statement by the defendant. The word 'republication' is an error. The plea should refer to the publication of the fourth matter complained of or the republication of the second matter complained of (Media Statement). It is arguable that the publication of the fourth matter complained of was the intended consequence, or alternatively the natural and probable consequence, of the publication of the Media Statement by the defendant to The West Australian. Unlike the third matter complained of, the fourth matter complained of arguably repeats the second matter complained of without the addition of any material that alters the sting of the second matter complained of.
I will not strike out [25]. However, [26] should be struck out and re‑pleaded to make it clear that it is pleading that the publication of the fourth matter complained of on The West Australian website was the intended consequence, or alternatively the natural and probable consequence, of the publication of the Media Statement by the defendant to The West Australian newspaper. It is arguable that the publication by a newspaper, or an online newspaper website, of the sense and substance of a Media Statement sent to it by the defendant is the intended consequence, or the natural and probable consequence, of the publication of the Media Statement by the defendant to the newspaper or online newspaper website.

Paragraph 27

Paragraph 27 pleads the imputations alleged to arise from the fourth matter complained of. They are in substance the same as the imputations pleaded in [17]. They should be struck out for the same reasons.

Paragraph 30

Paragraph 30 pleads that the defendant caused to be published in The West Australian newspaper under the heading 'Woodside Drops Payout to Mum' the fifth matter complained of. The fifth matter complained of is in substance the same as the fourth matter complained of. I reject the defendant's objections to [30] for the same reasons I reject the defendant's objection to [25]. Paragraph 31 should be struck out and re‑pleaded for the same reasons as [26].

Paragraph 32

Paragraph 32 pleads the imputations said to arise from the fifth matter complained of. They are in substance the same as the imputations pleaded in [17] and should be struck out for the same reasons.

Conclusion

Paragraphs 12.1, 17, 20, 21, 22, 26, 27, 31 and 32 should be struck out. Otherwise the defendant's summons should be dismissed.