Perry v McIntosh
[2010] VSC 85
•24 March 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10014 of 2009
| GEOFFREY ROBERT PERRY | Plaintiff |
| v | |
| ROBERT MCINTOSH | First Defendant |
| and | |
| PETER ROBERT RICHARDSON | Second Defendant |
| and | |
| ANDRE JOHAN STOFFERS | Third Defendant |
| and | |
| NEZIR de MAJ | Fourth Defendant |
| and | |
| ADAM GRAHAM RICHMOND | Fifth Defendant |
| and | |
| STEPHEN GRAHAM LOND | Sixth Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2010 | |
DATE OF JUDGMENT: | 24 March 2010 | |
CASE MAY BE CITED AS: | Perry v McIntosh & ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 85 | |
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DEFAMATION – Pleading – Statement of Claim – Plaintiff alleging defamatory words spoken by defendants at meeting – Whether plaintiff required to provide particulars of context – Whether words spoken by sixth defendant capable of bearing imputations pleaded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S K Wilson QC and Mr D J Bracken | Lawcorp Lawyers |
| For the Defendants | Ms R L Enbom | Yeldham Price O’Brien Lusk |
HIS HONOUR:
The plaintiff and each of the six defendants were, at the time material to this proceeding, members of the Mustang Owners Club. In this proceeding, the plaintiff claims damages against the defendants for defamation in respect of comments, alleged to have been made by the defendants about the plaintiff, in the course of a monthly meeting of the club on 17 June 2009.
The plaintiff has delivered an Amended Statement of Claim, and the defendants have not, as yet, delivered their defences. The defendants have applied for the following orders:
(1)That the plaintiff provide further particulars of the words, which he was speaking in the course of an address he made to the meeting, and which immediately preceded each of the words which the second, third, fourth, and fifth defendants are alleged to have spoken about him by way of interjection during that address.
(2)That each of the imputations pleaded in paragraph 11 of the Amended Statement of Claim, in respect of the words alleged to have been spoken by the sixth defendant, be struck out.
The relevant background to the proceeding is contained in the Amended Statement of Claim. At the relevant time, the plaintiff was the treasurer of the club and a member of its committee. Each of the second, third, fourth, fifth and sixth defendants were members of the committee of the club. The sixth defendant was the President of the club, the second defendants its Vice-President, and the third, fourth and fifth defendants each held other positions of office in the club. It is alleged in the pleading that the monthly meeting of the club, at which the defamatory words were spoken of the plaintiff, was attended by seventy members of the club.
Paragraph 10 of the Statement of Claim pleads the words which each defendant is alleged to have said in the course of that meeting. The particulars under paragraph 10, which were included in the pleading by way of amendment, set out some of the context in which it is alleged those words were spoken. In that way, paragraph 10 alleges that the plaintiff addressed the meeting in relation to the Treasurer’s monthly report prepared by him, copies of which had been made available to the members, together with a summary document. The sixth defendant (the President) then addressed the meeting and discussed both the treasurer’s report and the issue of nominations for positions on the committee of the club. In the course of that address the sixth defendant is alleged to have said the following words:
“Does the report which I read out to the meeting from the minutes of the previous meeting make any sense?...I had difficulty following it and the committee had to put up with this treasurer’s rubbish every month.”(“The sixth defendant’s words”).
Paragraph 10 of the Amended Statement of Claim then alleges that after the President had so addressed the members, the plaintiff took the microphone, and was in the course of addressing members as to issues that had been raised by the President, concerning nominations for positions on the committee and the Treasurer’s report, when each of the defendants separately and repeatedly interjected and addressed to the plaintiff, in loud and aggressive voices, the words: “you’re a liar!”. It is alleged that the second defendant made that statement four times, the first defendant three times, the third defendant twice, the fourth defendant twice, and the fifth defendant once.
Paragraph 11 of the Amended Statement of Claim pleads that the sixth defendant’s words were defamatory to the plaintiff and in their ordinary natural meaning bore four imputations, to which I shall return when I consider the second part of the application by the defendants.
Paragraph 12 pleads that each of the words spoken by the first to fifth defendants (inclusive) were defamatory of the plaintiff, and in their ordinary natural meanings meant and were understood to mean that:
(1)The plaintiff was a liar; and
(2)The plaintiff was not a fit and proper person to hold office in the club as Treasurer or otherwise.
The application for particulars
As I stated, as the first part of the application, the first five defendants seek an order that the plaintiff provide particulars of the words alleged to have been spoken by the plaintiff, which immediately preceded the words, which, it is alleged, were spoken by each of the first to sixth defendants. In support of that application, Ms Enbom, who appeared for the defendants, submitted that the words spoken by the plaintiff, in the course of his address, and which preceded the words uttered by each of the first to fifth defendants, will identify what it is that the plaintiff is alleged to have lied about. In that way, she submitted, the words, which it is alleged the plaintiff spoke, immediately before the defendants’ interjections, will necessarily affect the nature and complexion of the imputations, which arose from the words as stated by the defendants. Ms Enbom submitted that for those reasons the words which, the plaintiff will allege, were stated by him, before each of the alleged interjections, were material facts, which should have been either pleaded, or particularised, pursuant to Rule 13.03 of the Supreme Court Rules.
Further, Ms Enbom submitted that the provision of the particulars sought by the first to fifth defendants is necessary to enable those defendants to properly understand the nature of the allegation made against them in this case, and so to plead to it, and also so as to avoid surprise at the trial. For those reasons, she submitted that the plaintiff is obliged to give the particulars sought pursuant to Rule 13.10(1). She submitted that if the plaintiff does not give particulars providing the context in which, it will be alleged, the defendants accused him of being a liar, and if the defendants are obliged to wait until the case for the plaintiff is either opened or the subject of evidence at trial, that may significantly affect the defences to be pleaded on behalf of the defendants, and may cause the defendants to need to either amend their defences, or add further defences, in the course of the trial.
In response, it was submitted by Mr S K Wilson QC, who appeared with Mr D Bracken for the plaintiff, that the plaintiff is not obliged to provide the particulars sought by the defendant. He submitted that the plaintiff has properly complied with his obligation to plead the defamatory words, which, he will allege, were published of and concerning him by each of the defendants. On their face, he submitted, those words are plainly defamatory of the plaintiff. The plaintiff is not obliged to plead the context in which the allegedly defamatory words were spoken. Mr Wilson submitted that if the defendants sought to rely upon the context in which those words were spoken, then it is the defendants, not the plaintiff, who are obliged to plead the relevant context, as part of the defences to be relied upon by the defendants.
In support of that proposition, Mr Wilson referred me to the decision of the New South Wales Court of Appeal in Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & ors[1] and the decision of Hunt J in Gordon v Amalgamated Television Services Pty Ltd & Anor[2]. He also referred to two recent decisions of Nicholas J in Sandilands v Channel Seven Sydney Pty Ltd[3] and Robert Waites & Anor v Macquarie Radio Network Ltd[4], in support of the proposition that a plaintiff will only be required to “plead in” other words of the published material, apart from the defamatory statements on which the plaintiff relies, where it can be demonstrated, by the defendant, that the context is capable of materially altering the complexion of the defamatory words relied on by the plaintiff. Mr Wilson submitted that the defendants have not provided, by way of affidavit or otherwise, any material evidencing the relevant context, which would enable the court to judge whether that context was capable of materially altering the complexion of the words attributed to each of the defendants. He submitted that the onus lay on the defendants to put such material before the Court. Thus, he contended, were I to order the plaintiff to provide the particulars sought by the defendants, I would be “turning on their head” the principles of pleading and defamation.
[1][1971] 1 NSWLR 472.
[2][1980] 2 NSWLR 410.
[3][2005] NSWSC 1250.
[4][2006] NSWSC 507.
In response, Ms Enbom submitted that she was not, at this stage, seeking an order that “I strike in” the particular context in which the plaintiff alleges that the first to five defendants called him a “liar”. Rather, she submitted, the defendants are entitled to particulars of that context, so as to enable them to determine what defence or defences should be pleaded to the claim made by the plaintiff.
The principles, which apply to this application, are not in dispute, and may be shortly stated. First, as a general proposition, a plaintiff is ordinarily only required to plead the particular words, published by the defendants, which the plaintiff alleges were defamatory of him. Thus, ordinarily, the plaintiff is not obliged to plead the context or background in which those words were published. However, as a qualification to that principle, a plaintiff may be required to plead other words, whether spoken by the defendant or by someone else, on the same occasion, where those other words might alter or qualify the complexion of the words which, the plaintiff alleges, were defamatory of him. Those principles are now well established, and have been stated in a number of cases, including Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors[5]; Gordon v Amalgamated Television Services Pty Ltd & Anor[6]; Kasic v Australian Broadcasting Commission[7]; A v Ipec Australia Ltd v Crew[8].
[5][1971] 1 NSWLR 472, 477 (Asprey JA).
[6][1980] 2 NSWLR 410, 413-414 (Hunt J).
[7][1964] VR 702, 706 (Gowans J).
[8][1973] VR 39, 44-45 (Menhennitt J).
In each case, in which that qualification has been applied, it has been demonstrated that the words which were spoken on the same occasion, and which had not been pleaded by the plaintiff, might materially alter or qualify the complexion of the imputations relied upon by the plaintiff. Thus, as Mr Wilson correctly pointed out, the qualification only applies where it can be demonstrated, either by way of common ground, or by the defendant, that there is a context to the alleged defamatory words, not pleaded by the plaintiff, but which might, if pleaded, have a bearing on the colour of the imputations relied upon by the plaintiff. In this case, the defendant had not put forward any material setting out that context. Thus, in my view, Mr Wilson is correct in submitting that the plaintiff cannot, at this stage, be required to “plead in” the context in which the plaintiff alleges that the words were spoken.
Indeed, in response to Mr Wilson’s submissions, the proposition, which I have just summarised, was accepted by Ms Enbom. However, as I have stated, she responded by contending that the defendants should be entitled to particulars of the context, in order to enable the defendants to plead properly to the imputations made by the plaintiff.
In order to determine this matter, it is important to return to the pleading by the plaintiff of his claim against the first to fifth defendants. In doing so, two matters are, in my opinion, particularly significant. First, in the particulars provided under paragraph 10, the plaintiff has made it plain that he will allege that the interjections attributed to each of the defendants were made in a specific context, namely, when the plaintiff was “…addressing the members as to issues that had been raised by the President concerning nominations for positions on the committee and the Treasurer’s report…”. Further, it is significant that the plaintiff relies on not one, but two, imputations. The first imputation is nothing more than a repetition of the defamatory words alleged by the plaintiff, namely, that “the plaintiff was a liar”. However, in addition, the plaintiff also seeks to rely on a second imputation, namely that “the plaintiff was not a fit and proper person to hold office in the club as Treasurer or otherwise.”
Taken together, the extract from the particulars to paragraph 10 to which I have just referred, and the second imputation, make it plain that the plaintiff will be alleging that the words attributed to the defendants were spoken of him, not generally, and not in respect of his general character, but, rather, in the context of his role as the Treasurer of the club. In that sense, it seems plain that the plaintiff, to succeed on the second imputation, must prove at least some context to the interjections by the first to fifth defendants, which the plaintiff claims are defamatory of him. Accordingly it seems clear from the pleading, that, contrary to what was asserted by Mr Wilson in his submissions to me, the plaintiff will go further than proving that, in the course of an address made by him to the meeting, he was alleged to be a liar by the first to fifth defendants. Rather, the plaintiff will give some context in his evidence, at least to the effect that he was making an address to the meeting about the topics referred to in the particulars under paragraph 10, namely the Treasurer’s report and the nominations for the position on the committee. Further, in order to sustain the second imputation, the plaintiff will need to prove sufficient of the context, in order to enable the allegation, that he was a “liar” to relate to his capacity to serve as Treasurer of the club.
As I stated in the course of argument, it might be one thing for a person to allege, gratuitously, and with no context, that a plaintiff is a liar; it is a wholly different matter for a person to allege that the plaintiff is a liar, in respect to something particularly said by the plaintiff. It would seem, from the plaintiff’s pleading, that he seeks to rely on the second, but not the first, type of allegation made by the defendant. Further, as I stated, he seeks to give to that type of allegation a particular characteristic, namely that the plaintiff lied about something relating to his role as Treasurer of the club.
Ultimately, it is, I think, inevitable, that at trial the plaintiff will do more than simply state to the jury, in his evidence, that he was addressing the meeting about the Treasurer’s report, when the alleged interjections were made by the first to fifth defendants. If the plaintiff is not required to provide particulars as to the context in which it is alleged that the interjections were made by those defendants, there is a real potential for the defendants to find themselves in a position of surprise at the trial. Thus, in the absence of the provision of such particulars, there is a realistic potential for the trial to miscarry, on the basis that the defendants might need to amend their defences, at a time at which they might be prejudiced by doing so before the jury.
In that respect, Rule 13.10 of the Supreme Court Rules reflects the underlying purpose of particulars, namely, to avoid unnecessary surprise, so that the orderly trial of actions such as these is not unduly disrupted. For the reasons, which I have stated, accordingly, I uphold the application by the defendants that the plaintiff provide particulars of the words, alleged to have been spoken by the plaintiff, immediately before each of the defendants made the interjections attributed to them.
The imputations
The second application made by the defendants is that the four imputations, pleaded by the plaintiff in paragraph 11 of the Amended Statement of Claim in respect of the sixth defendant’s words, be struck out. In paragraph 11 it is pleaded that the sixth defendant’s words were defamatory of the plaintiff, and in their ordinary and natural meaning meant and were understood to mean that:
“a. The plaintiff was an incompetent treasurer of the club;
b. The plaintiff produced Treasurer’s reports which were inaccurate, worthless and nonsensical;
c. The plaintiff’s methodology for creating financial reports for the committee and the members were so lacking in form and substance that his reports were rubbish;
d. The plaintiff as treasurer prepared his reports for the Club in such manner that the committee and members could make no sense of the same.”
Ms Enbom submitted that the words attributed to the sixth defendant were not capable of giving rise to any of the imputations pleaded by the plaintiff. In determining that question, my role is not to decide whether the words, alleged to have been spoken by the sixth defendant, did give rise to the particular imputations in question. That will be the function of the jury at the trial of the proceeding. Rather, my role is to determine whether a jury could reasonably conclude that the words bore the meanings pleaded by the plaintiff. In determining that question, the test is whether the words spoken by the sixth defendant were reasonably capable of conveying to the ordinary reasonable listener at the meeting the imputations pleaded by the plaintiff[9]. The hypothetical “ordinary reasonable” recipient of a publication has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in light of his or her general knowledge and experience of worldly affairs[10]. Such a listener is described by the law as someone who is not “avid for scandal” and who is neither “unusually suspicious nor unusually naïve”[11]. Such a person does engage in a degree of loose thinking, and is understood to “read between the lines”[12]. In particular, the ordinary reasonable listener is a lay person, not a lawyer, and his or her capacity for implication is much greater than that of a lawyer[13].
[9]Jones v Skelton [1964] NSWR 485, 491.
[10]Lewis v Daily Telegraph Limited [1964] 234, 258 Lord Reid.
[11]Lewis v Daily Telegraph Limited (above), 259-260 Lord Reid, 277 (Lord Devlin).
[12]Above, 258 (Lord Reid).
[13]Morgan v Odhams Press Limited [1971] WLR 1239, 1245; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408, 412.
A number of submissions made by Ms Enbom, in respect of each of the four imputations pleaded by the plaintiff, were based on the proposition that the words attributed to the sixth defendant were only capable of being referable to the capacity of the reader of the plaintiff’s monthly report to comprehend that report. She submitted that the words stated by the sixth defendant, when considered together, could not bear any imputation relating to the competence of the plaintiff, or to the quality or otherwise of the substance of the reports. Rather, she submitted, the words, considered in their totality, could only be reasonably understood as referring to the unintelligibility of the reports.
In my view, that submission is too narrow. The word “rubbish” is a forceful and colourful use of the vernacular. In ordinary parlance, to describe a document as “rubbish” may mean more than to describe it as lacking in intelligibility. Such an allegation is reasonably capable of also conveying that the report is “worthless” and hence it is rubbish. Thus, in my view the description of the report as “rubbish” is capable of bearing on the quality (or otherwise) of the substance of the report, and not simply its form.
With those general propositions in mind, I turn to each of the four imputations pleaded by the plaintiff. The first imputation (in para 11(a)) was that the plaintiff was “an incompetent Treasurer of the Club”. Ms Enbom contended, for the reasons which I have just discussed above, that the words attributed to the sixth defendant were not capable of bearing such a meaning. I disagree for the reasons which I have already expressed above. The pleading makes it clear that it was the responsibility of the plaintiff to produce monthly reports, which were to be discussed at the monthly meetings. The allegation that the plaintiff, as Treasurer, produced monthly reports which were “rubbish” is, in my view, capable of giving rise to the imputation that the plaintiff was incompetent as the Treasurer of the club. Ms Enbom then submitted that the imputation was too vague, because it did not expressly state that the plaintiff was an incompetent treasurer because he produced reports which were rubbish. I reject that submission. The imputation is perfectly clear. If a person is alleged by a defendant to fail to discharge an important part of that person’s role as an officer or holder of the club, such an allegation is capable of giving rise to an allegation that that person, in his capacity in the club, was incompetent; it is not necessary for the plaintiff to specify, in pleading the imputation, how and why he was alleged to have been incompetent.
I turn, then, to the second imputation pleaded in para 11(b), namely that the plaintiff “produced Treasurer’s reports which were inaccurate, worthless and nonsensical.” Ms Enbom sought to impugn the use of the adjective “inaccurate” in the imputation. She submitted that the words spoken by the sixth defendant were not capable of being construed as being critical of the substance and accuracy of the reports. For the reasons I have stated, I disagree. An allegation, that the reports were “rubbish”, is capable of giving rise to an imputation that they were worthless, in the sense that they bore no proper relationship to the true state of the finances of the company, and thus were inaccurate.
The third imputation was that the “plaintiff’s methodology for creating financial reports for the committee and the members were so lacking in form and substance that his reports were rubbish.” Ms Enbom largely contended that the imputation, standing alone, is imprecise and indeed difficult to understand. In the absence of any pleaded context, I am inclined to agree with Ms Enbom. However, in the course of submissions, Mr Wilson pointed me to matters which are, at present, pleaded in the particulars of the aggravated damages, and also to further matters which are to be included in those particulars by way of further amendment, which have already been notified to the defendants. In essence, it would seem, it will be pleaded, by way of particulars of aggravated damages, that before publishing the words complained of, the sixth defendant had read to the meeting the Treasurer’s reports of the previous two months, and in doing so had intermingled those reports in such a way as to make the reports sound confusing and illogical. In my view, if the particular context, so foreshadowed by Mr Wilson, were properly pleaded to the words attributed to the sixth defendant, then those words would be capable of giving rise to the meaning specified in paragraph 11(c). For, in such a case, the sixth defendant would have spoken those words, immediately after having jumbled two reports he prepared by the plaintiff in a way which made them sound not only lacking in any form, but indeed lacking in substance In that context, in my view, the words published by the sixth defendant could be understood as bearing an imputation that the plaintiff’s methodology in creating the financial reports was so lacking in form and substance that those reports were rubbish.
Ms Enbom also submitted that the description of the reports as “financial reports” in paragraph 11(c) is unfounded and is to be contrasted with paragraph 10 and each of the three other innuendos which refer to the documents prepared by the plaintiff as “reports”. In my view, that complaint is, with respect, lacking in substance. It is clear that in the imputation the plaintiff is referring to the same reports as those alluded to in the second and fourth imputations and referred to in paragraph 10.
The fourth imputation, pleaded in paragraph 11(d) was that the plaintiff, as treasurer, prepared his reports for the club in such a manner that committee and members could make no sense of the same. Ms Enbom submitted that the words, attributed to the sixth defendant, were not capable of giving rise to that imputation. She submitted that, at most, the words meant that the sixth defendant himself had found the report unintelligible. Thus, she submitted the words were not capable of giving rise to the imputation that the committee and members of the club could not make any sense of the reports. I disagree. The words attributed to the sixth defendant state that “the committee had to put up with this Treasurer’s rubbish every month.” Pausing there, those words are capable of expressly meaning that the reports published by the plaintiff were unintelligible to the committee each month. Further, the context pleaded in the particulars under paragraph 10 is that copies of the plaintiff’s Treasurer’s report had been made available to the members at the meeting. An allegation by the President of the Club, that the report did not make any sense to him or the committee was, in my view, capable of giving rise to the imputation that, similarly, it was unintelligible to the members, and, indeed, to any other person who read it. Thus, in my view the words attributed to the sixth defendant were capable of giving rise to the imputations pleaded in paragraph 11(d).
Conclusion
I therefore summarise the conclusions, which I have reached in these reasons, as follows:
(1)The first, second, third, fourth, and fifth defendants are entitled to particulars, under paragraph 10 of the Amended Statement of Claim, of the words spoken by the plaintiff, in addressing the members of the Club, which immediately preceded the words which, it is alleged, in paragraphs 10(b), to 10(f) were spoken of and concerning the plaintiff by the second to fifth defendants respectively.
(2)I reject the application by the defendants to strike out the imputations pleaded in paragraph 11 of the Amended Statement of Claim.
(3)I direct that the plaintiff amend his Amended Statement of Claim so as to plead, by way of context to the words attributed to the sixth defendant in paragraph 10(a) of the Statement of Claim, those parts of the particulars of aggravated damages, which the plaintiff intends to rely upon by way of such context.
I shall hear counsel on the question of costs.
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