JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RAMBAL -v- CAHILL [2012] WASC 353
CORAM: KENNETH MARTIN J
HEARD: 21 AUGUST 2012
DELIVERED : 21 SEPTEMBER 2012
FILE NO/S: CIV 1830 of 2012
BETWEEN: VIKAS RAMBAL
First Plaintiff
ANDREAS WALTER WALEWSKI
Second PlaintiffAND
CASEY CAHILL
Defendant
Catchwords:
Defamation - Practice and procedure - Statement of claim - Strike-out application - Imputations - Use of term 'caused'
Defamation - Practice and procedure - Statement of claim - Strike-out application - Identification of plaintiffs - Plaintiffs not named in original publication to journalist - Extrinsic facts relied upon to establish identification - Republication in newspaper and on internet - Express identification of one plaintiff, but not others, in republication
Defamation - Standing - Assertion regarding conduct of corporation in maintaining and pursuing litigation - Serious allegation of fabricated civil action - Claim by directors of company
Legislation:
Defamation Act 2005 (WA), s 9
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr B R McClintock SC & Mr M L Bennett
Second Plaintiff : Mr B R McClintock SC & Mr M L Bennett
Defendant: Mr J D Maclaurin
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
Defendant: Clifford Chance
Case(s) referred to in judgment(s):
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Campbell v Wilson [1934] SLT 249
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Hill v Taylor (Unreported, NSWSC, 25 November 1983)
Leighton v Garnham [2012] WASC 314
Morgan v Odhams Press [1971] 1 WLR 1239
Roberman v Australian Broadcasting Commission [2002] WASC 301
KENNETH MARTIN J:
Overview
Mr Cahill, as the defendant in these defamation proceedings brought by Mr Rambal and Mr Walewski, seeks to strike out the plaintiffs' amended statement of claim of 18 June 2012.
Mr Rambal is chairman and managing director of Perdaman Chemicals & Fertilisers Pty Ltd (Perdaman). Mr Walewski is a director of Perdaman.
Mr Cahill is a director of the Perth office of a communications consultancy firm, Kreab & Gavin Anderson. At all relevant times Mr Cahill was professionally engaged on behalf of an Indian corporation known as Lanco Infratech Ltd (Lanco). Lanco and Perdaman are currently involved in civil litigation in the Supreme Court of Western Australia arising out of Perdaman's efforts to construct a urea production plant in the Shotts Industrial Park, located 7.5 km east of Collie in the south west of Western Australia.
These proceedings arise out of an email Mr Cahill sent to a journalist at the South Western Times newspaper on 17 April 2012 (the Email). The journalist, Ms Claire Negus, was seeking information concerning the litigation between Perdaman and Lanco, and had emailed a series of questions to Mr Cahill, who had been acting as an intermediary spokesman for Lanco. The Email addressed each of the questions Ms Negus had posed, it being…
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- AGLC
- Rambal v Cahill [2012] WASC 353
- Case
- [2012] WASC 353
- Decision Date
CaseChat Overview and Summary
The court examined the formulation of the imputations in the plaintiffs' statement of claim. It assessed whether the use of the term 'caused' in the imputations was clear and unmistakeable in its seriousness. The court also considered the implications of the word 'fabrication' in the context of the alleged defamatory statements. Furthermore, the court evaluated whether the plaintiffs had standing to bring the action, particularly as they were not named in the original publication but were identified through extrinsic facts.
The court found that the plaintiffs' formulation of the imputations was sufficiently precise to capture the essence of the alleged stings of the publication. It held that the use of the term 'caused' in the imputations was clear and unmistakeable in its seriousness, particularly in light of the concluding words 'deliberately false claims'. The court also determined that the plaintiffs had standing to bring the action, as they were identifiable through the extrinsic facts and the republications. The court rejected the defendants' strike-out application.
The court ordered that the defendants' application to strike out the plaintiffs' statement of claim be dismissed. The case proceeded to trial, with the plaintiffs' claims for defamation to be determined on their merits.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The plaintiffs call in aid observations by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137B, 138C regarding these types of evaluations being 'matters of degree'. In Drummoyne Gleeson CJ observed that almost any attribution of an act or condition to a person is capable of both further refinement, or further generalisation. There is a self‑evident wisdom in that observation in my respectful opinion. An aggrieved plaintiff's formulation of an imputation must be sufficiently precise to capture the essence of the asserted sting or stings of the publication. But this is always a matter of case by case evaluation and judgment, assessed in the unique factual context of any case. The assessment must be pragmatic. The viability of managing a defamation trial (potentially heard before a civil jury) is one pragmatic consideration. So also is the basal need for the defendant to know the case it has to meet and for it to be able to weigh up the moment or requirements of running a potential defence of justification. In this particular case senior counsel for the plaintiffs eschewed any suggestion that the pleaded imputation at issue encompasses any lesser level of intermediate responsibility, such as recklessness. He points to unmistakeable clarity in the words 'deliberately false claims'. He also contends that the use of the word 'caused' is preceded in each imputation by direct reference to the capacity in which each defendant allegedly caused Perdaman to act: in the case of Mr Rambal, as the chairman and managing director of Perdaman and, in the case of Mr Walewski, as a director of Perdaman. Senior counsel for the plaintiffs drew my attention as well to the serious nature of the actions attributed to Perdaman. This, it was contended, is most relevant to my assessment, since the more serious the acts of misconduct alleged against a company, particularly as regards deliberate misconduct, the more likely it is said to be that the active misconduct can be linked in some way to input from the company's human agents, and particularly to the company's directors. In the present case the Email and republications used the word 'fabrication', in the phrase 'This fabrication by Perdaman'. The word 'This' must be read as a reference to Perdaman's civil action against Lanco. A fabricated civil action could arguably fall within the ambit of the torts of abuse of process or even malicious prosecution. As to abuses of process by civil action, see Williams v Spautz (1992) 174 CLR 509, 526 ‑ 527. A civil action brought as an abuse of process or as a malicious prosecution by a corporation potentially carries consequences for any natural persons who are involved in the bringing or advancement of such litigation. In some other contexts use of the word 'caused' in an imputation has been criticised: see, for instance, Amalgamated Television v Marsden (162 ‑ 163) and Roberman v Australian Broadcasting Commission [2002] WASC 301 [43], [63] - [67], [72]. But here, the challenges against the use of the word 'caused' in pars 5, 7, 14 and 16 must in my view be rejected. Here the meaning of the imputations is clear and unmistakeable in its seriousness. The concluding words of the imputations, 'deliberately false claims', direct that conclusion.