Rambal v Cahill
[2012] WASC 353
•21 SEPTEMBER 2012
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
Samsun Pty Ltd v Wily [2000] NSWSC 281
Williams v Spautz (1992) 174 CLR 509
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 clear that the answers provided were being provided by Mr Cahill on behalf of Lanco, his client. Notwithstanding that they are not named by Mr Cahill in the Email, the plaintiffs complain that the Email was, in its natural and ordinary meaning, defamatory.
Furthermore, both plaintiffs complain of subsequent republications of this defamatory imputation as a direct consequence of Mr Cahill sending the Email to Ms Negus. The amended statement of claim identifies the alleged republications as Ms Negus' article published on the front page of the South Western Times newspaper on 10 May 2012 and on the internet on or about 14 May 2012.
The plaintiff's responsive submissions attach copies of:
(a)the Email;
(b)a copy of the article that appeared on the front page of the South Western Times on Thursday 10 May 2012 under the headline 'Giant project under threat'; and
(c)a copy of the internet publication in which the words of the article are accompanied by a photograph of Mr Rambal with the caption 'Perdaman managing director Vikas Rambal'.
By way of overview it may be observed at the outset:
(a)The Email does not mention either Mr Rambal or Mr Walewski by name. The answers provided by Mr Cahill in the Email refer to the corporation Perdaman. Nor does the Email directly mention actions or omissions by the board or by individual directors of Perdaman.
(b)The article in the South Western Times published on Thursday 10 May 2012 is headed 'Giant project under threat'. The author of that article is identified as Ms Negus. The newspaper article contains this extract:
Lanco spokesman Casey Cahill told the [South Western Times] that Perdaman had no valid claim and the company would be lodging a counter claim in the near future.
'This fabrication by Perdaman, laying blame at the feet of Lanco and Griffin, is causing damage to our good reputation,' he said.
The quoted words seen in the second paragraph of this extract above are taken word for word from Mr Cahill's Email.
(c)The South Western Times' newspaper article of 10 May 2012, unlike the Email, expressly identifies Mr Rambal as Perdaman's managing director.
(d)The internet publication contains the same direct quote from the Email: 'This fabrication by Perdaman, laying blame at the feet of Lanco and Griffin, is causing damage to our good reputation'.
(e)Above and beyond the express naming of Mr Rambal as Perdaman's managing director, the internet article as I mentioned shows Mr Rambal's photograph above the caption 'Perdaman managing director Vikas Rambal'.
Four challenges to the statement of claim
With those preliminary observations it is possible to move to address aspects of the amended statement of claim challenged on the present application.
As regards the Email, pars 5 and 7 are impugned and, as regards alleged republications, there are challenges to pars 14 and 16.
Broadly speaking there are four lines of attack. First, the defendant raises an issue of form over what is contended to be the embarrassing, ambiguous or unclear use of a 'weasel' word. The word complained of is 'caused', used in the formulation of the common, sole, natural and ordinary meaning (false innuendo) as used by the plaintiffs in pars 5, 7, 14 and 16.
Second, and independently of that alleged deficiency of form, there is a grievance concerning identification of the plaintiffs in the Email. Put more simply it is said that, because Mr Rambal and Mr Walewski are not named and because there is no criticism of Perdaman's board or Perdaman's individual directors, the content of the Email is incapable of being fairly read to carry any pejorative imputation that is directed against Mr Rambal or Mr Walewski.
Third, and correlatively to the second grievance, it is said on behalf of Mr Cahill that if the Email cannot be read as being arguably defamatory of Mr Rambal and Mr Walewski when they are not identified, then Mr Cahill cannot, even arguably, be held responsible for any subsequent republications which do identify and therefore may defame Mr Rambal and Mr Walewski.
Fourth, if he does not succeed in respect of his second and third challenges, Mr Cahill says alternatively, that the express identification of Mr Rambal as Perdaman's managing director in the South Western Times' newspaper article and also within the internet publication must mean that no fair minded reader of the words used in the alleged republications could possibly have concluded that there was any defamatory imputation therein made directed against Mr Walewski, he being still only an unnamed ordinary director of Perdaman.
Before dealing with the four challenges I will elaborate upon the content of the plaintiff's amended statement of claim.
The amended statement of claim
Before setting out paragraphs specifically challenged I need to mention the content of pars 1 and 2, because they are incorporated by reference into the particulars of identification in par 4 of the pleading, to which I will shortly refer. Paragraph 1 provides:
The First Plaintiff is and was at all material times the Chairman and Managing Director of Perdaman Chemicals and Fertilisers Pty Ltd (ACN 121 263 741) (Perdaman) being the company responsible for the planned construction and operation of a world scale leading edge technology urea production plant, using coal as stock feed, in the Shotts Industrial Park in the State of Western Australia, located 7.5 kilometres east of Collie in the south west of Western Australia.
Paragraph 2 provides that the second plaintiff, Mr Walewski, is and was at all material times a director of Perdaman. Paragraph 4 of the pleading, which sets out the content of the Email, follows.
Paragraph 4 also pleads that the publication of the Email was 'to Claire Negus (a journalist at the South Western Times newspaper) and to the South Western Times newspaper'. Next I mention the particulars of identification supplied with par 4 in terms:
The Plaintiffs repeat paragraphs 1 and 2 above and say further that the facts stated in the said paragraphs were known to Ms Negus and the South Western Times as the First Plaintiff has regularly been identified as the Chairman and Managing Director of Perdaman, and the Second Plaintiff as a Director of Perdaman in media publications including in previous editions of the South Western Times as well as the Collie Mail newspaper, The West Australian newspaper, The Australian Financial Review and on the 'Perth Now' website (>
The particulars of identification in par 4 are material for two essential reasons. First, as regards the Email they are said to be particulars of identification known to Ms Negus and the South Western Times. It can be seen that the allegation concerning Ms Negus's and the newspaper's knowledge raises a question of fact that will require proof at a trial, in the event that it is not admitted. Second, there are similar particulars of identification, by prior knowledge with some extra content, as regards the alleged republications (see for instance par 14 concerning Mr Rambal and par 16 concerning Mr Walewski).
I now set out pars 5, 7, 14 and 16 (including particulars):
5.The First Publication complained of was defamatory in its natural and ordinary meaning and was understood to mean that the First Plaintiff in his capacity as the Chairman and Managing Director of Perdaman has caused Perdaman to maintain deliberately false claims against Lanco.
…
7.The First Publication was defamatory in its natural and ordinary meaning and meant and was understood to mean that the Second Plaintiff in his capacity as a Director of Perdaman has caused Perdaman to maintain deliberately false claims against Lanco.
…
14.The Article in its natural and ordinary meaning meant and was understood to mean that the First Plaintiff in his capacity as the Chairman and Managing Director of Perdaman has caused Perdaman to maintain deliberately false claims against Lanco.
Particulars of identification
The First Plaintiff is identifiable as the Chairman and Managing Director of Perdaman to an unquantifiable number of unidentifiable readers of the Article as:
a.the First Plaintiff is identified by name in the body of the Article;
b.a colour picture of the First Plaintiff (along with caption identifying the First Plaintiff by name) accompanies the Article on the Website; and
c.the First Plaintiff has regularly been identified as the Chairman and Managing Director of Perdaman in media publications including in previous editions of the South Western Times as well as the Collie Mail newspaper, The West Australian newspaper, The Australian Financial Review and on the 'Perth Now' website ( Article in its natural and ordinary meaning meant and was understood to mean that the Second Plaintiff in his capacity as a Director of Perdaman has caused Perdaman to maintain deliberately false claims against Lanco.
Particulars of identification
The Second Plaintiff is identifiable as a Director of Perdaman to an unquantifiable number of unidentifiable readers of the Article as the Second Plaintiff has regularly been identified as a Director of Perdaman in media publications including in previous editions of the South Western Times as well as the Collie Mail newspaper, The West Australian newspaper, The Australian Financial Review and on the 'Perth Now' website ( defendant's first grievance
An objection as to form concerning pars 5, 7, 14 and 16, is focused on a use of the word 'caused'. 'Caused' is said to be a 'weasel word', used in such manner that the imputation pleaded does not attribute a precise act or condition to the defendant. The defendant says the pleaded imputations, in their present form, are impermissibly ambiguous and confusing, and thereby likely to embarrass the defendant when he attempts to meet the plaintiffs' contentions at trial.
The embarrassment said to arise from the use of the word 'caused' in this case is in a context of either Mr Rambal or Mr Walewski being asserted to have 'caused' Perdaman to 'maintain deliberately false claims against Lanco'. The defendant buttresses this argument by reference to observations made about the word 'caused' regarding the imputations considered by Hunt CJ (CL) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 162 ‑ 163.
Counsel for the defendant, as I interpreted his argument, contended at the hearing that in present circumstances use of the word 'caused' had thrown up a range of meanings. This range, counsel said, could potentially span the plaintiffs as Perdaman's directors merely allowing the litigation against Lanco to happen, or recklessness by the plaintiffs in causing Perdaman to pursue such an action against Lanco, or could even embrace the a more serious charge that the plaintiffs were the knowing progenitors of a completely baseless civil action against Lanco. That range of possibilities was said to be unacceptable because the defendant did not know the actual case it had to meet at trial. It was said that in a defamation action this was doubly important because there was potential for a defence of justification and the defendant ought to know in fairness, the seriousness of the imputation it has to justify.
On the other hand, the plaintiffs contend that their sole imputation, as found in pars 5, 7, 14 and 16, is very clearly formulated. They say the imputation must be assessed in the context of the surrounding words of the allegedly defamatory matter. It is said that once this is appreciated their use of the word 'caused' in the particular circumstances is clear and precise.
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.
Evaluation
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.
The overall context of the surrounding words used by the Email must be weighed. Before Mr Cahill used the word 'fabrication', he made other pejorative remarks concerning Perdaman's civil litigation against Lanco.
The Email
Mr Cahill also used the phrases 'Perdaman has tried to allege that', 'the nature of the company's ridiculous damages claim', 'Perdaman has no valid claim', 'prove its fragile claim', and '[t]hey are trying to divert blame'. Those remarks, taken on their own, may have been explained as merely suggesting a strongly refuted, marginal, weak, or less than promising civil action by Perdaman against Lanco. But here they are followed by a critical sentence, provided as an answer to the question, 'What is at stake for Lanco in the court case?' At this point Mr Cahill uses a problematic word, 'fabrication', in the sentence 'This fabrication by Perdaman laying blame at the feet of Lanco and Griffin is causing damage to our good reputation'.
In a context then of the words complained of in the Email, where Perdaman has already been criticised and a direct question posed about what is at stake for Lanco in the court case, a use of the strong word 'fabrication', conveying as it does a serious allegation levied against Perdaman, establishes in my view an arguable foundation for the imputations concerning Perdaman's managing director (Mr Rambal) and another Perdaman director (Mr Walewski), as pleaded.
Alleging Perdaman is engaged in an abuse of process or a malicious prosecution against Lanco would be a charge of significant gravity. Fabrications do not happen accidently. A fabrication requires a fabricator or fabricators. For a corporate entity such as Perdaman, its senior officers and decision makers are here in my view squarely drawn into the frame by the intrinsic character of the serious charge against Perdaman.
There can be no conceptual disagreement that a serious charge put against a corporation may carry implications concerning individuals associated with the governance of the corporation. So much also seems to be implicit in s 9 of the Defamation Act 2005 (WA). Sections 9(1) and 9(5) provide:
(1)A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
…
(5)Subsection (1) does not affect any cause of action for defamation that an individual associated with a corporation has in relation to the publication of defamatory matter about the individual even if the publication of the same matter also defames the corporation.
To the same end, in Hill v Taylor (Unreported, NSWSC, 25 November 1983) Hunt J (as he then was) in distinguishing observations by Lord MacKay in Campbell v Wilson [1934] SLT 249, 252, observed (6 ‑ 7):
His Lordship did not give any example of a statement concerning a company where the imputation which it conveyed would not also relate to its directors or to those persons who were known to be responsible for the construct of the company which was the subject of the statement made. Indeed, it is very difficult to think of an example of such a statement … There is, of course, a vast difference between a mere member of a company and those who are known to be responsible for the conduct of that company's business undertaking.
Nor am I moved by a submission that there is any real or legitimate doubt in Mr Cahill's camp as to the scope of a task of mounting a defence of justification to these imputations as contended for by Mr Rambal and Mr Walewski. The task will be onerous as to proving deliberately false claims at the civil standard of proof.
Ultimately I am not satisfied Mr Cahill suffers any tangible embarrassment or prejudice by the plaintiff's use of the word 'caused' in the imputation as pleaded in pars 5, 7, 14 and 16.
The defendant's second grievance
As regards identification challenges which have been raised concerning Mr Rambal and Mr Walewski, they being not named in the Email, it is significant to my view that the particulars of identification I have set out from par 4 of the amended statement of claim, clearly assert that the facts stated in pars 1 and 2 were 'known to Ms Negus and the South Western Times'. Whether or not such knowledge can be proved, is a question of fact to be determined at a trial. The particulars refer to other sources of identification knowledge, such as previous editions of the South Western Times, as well as other newspapers which are said to have identified both Mr Rambal and Mr Walewski. In the circumstances, whether the Email sufficiently identified the plaintiffs to Ms Negus or others, is a question for trial, not for a strike out application. As to the proof of a sufficient identification in circumstances where an aggrieved plaintiff is not named, see Morgan v Odhams Press [1971] 1 WLR 1239, 1244 ‑ 1245 (Lord Reid) 1253 ‑ 1254 (Lord Morris) 1269 ‑ 1270 (Lord Pearson), and also the observations of Le Miere J in Leighton v Garnham [2012] WASC 314 [14] – [16].
It should not be forgotten as well that the subsequent South Western Times article and internet publications, authored by Ms Negus, do expressly identify Mr Rambal. So as regards the assertion that Ms Negus read the Email as being a publication of and concerning at least Mr Rambal, the fact an article she subsequently wrote expressly identifies Mr Rambal is a relevant factor as to the state of her knowledge at that time.
A conclusion that the alleged identification is a matter to be proven at trial applies equally to pars 14 and 16, as regards alleged republications in the South Western Times and over the internet. In the newspaper publication, of course, Mr Rambal is expressly identified as Perdaman's managing director. In the internet publication his photograph as well is set alongside the words of the article. All this appears to be Ms Negus' work.
Mr Walewski is not directly identified in either of the alleged republications. But at the end of the day it seems to me that the criticism here only raises a question of fact concerning his identification that will also need to be determined at a trial, on evidence there adduced.
The defendant's third grievance
Given conclusions which I have reached concerning the second grievance, it is unnecessary to address the third grievance, which is derivative from the second. The third grievance asserts Mr Cahill cannot be responsible for republications of his initial publication (the Email), if the initial publication does not identify, and therefore does not defame, the plaintiffs.
As a matter of general principle a proposition that there will be no responsibility for a republication in circumstances where the initial publication was not defamatory would seem broadly unremarkable: see Samsun Pty Ltd v Wily [2000] NSWSC 281 [37].
But given a conclusion that the Email is arguably defamatory of both plaintiffs, it is not open to pursue theoretical implications of that general principle to present circumstances.
The defendant's fourth grievance
Lastly, Mr Cahill submits in the alternative that an explicit identification of Mr Rambal as Perdaman's managing director in the South Western Times' newspaper article and in the internet article, must mean that a reasonable reader would not understand the republications to refer to Mr Walewski (even if it is shown that Mr Walewski was identified by Ms Negus or the South Western Times, by reason of matters known to her or others at the newspaper at the time when the Email was received).
In advancing this argument Mr Cahill points to both alleged republications and their reference to Perdaman and Lanco in the first paragraph, with those corporations both there identified as 'Indian giants'. Giant corporations it is put would likely have significant management structures and hence multiple directors on their boards of directors. Hence it is put by Mr Cahill that there is nothing in either alleged republication to suggest that Perdaman's conduct in advancing the impugned civil litigation against Lanco can in any way be attributed to Mr Walewski.
Mr Cahill says that if the republications do attribute Perdaman's conduct to any natural person, the attribution was only to Perdaman's managing director, Mr Rambal, as he is expressly identified and his photograph accompanies the internet article. So as regards Mr Walewski, as a Perdaman director who was not named in either article, it is put that there can be no arguable basis for suggesting that a reasonable, albeit casual reader, not avid for scandal, could attribute responsibility for the advancement by Perdaman of deliberately false claims in litigation against Lanco to Mr Walewski as one of Perdaman's directors.
Again, however, the fundamental problem I assess with this challenge is that the question of whether either alleged republication identifies Mr Walewski is essentially a question of fact to be determined at trial. This is an evaluation that will need to be made within the context and framework of all the evidence emerging at trial under the particulars of identification to par 16 concerning Mr Walewski and the extent of his identification as a director of Perdaman in prior media publications.
Evidence of witnesses linking Mr Walewski to the republications will raise matters to be evaluated at trial. Hence, the grievance does not seem to me raise a deficiency that warrants a striking out of par 16, on a basis that an identification of Mr Walewski in the republication is unarguable. It will be for a trial judge or a civil jury to decide whether a reasonable basis is established for Mr Walewski's identification, particularly in a context of the serious charge against Perdaman that it has run fabricated claims in civil litigation against Lanco.
Conclusion
For these reasons Mr Cahill has wholly failed to persuade me that the plaintiff's amended statement of claim is deficient in the respects complained of as regards potential embarrassment, or by failing to disclose an arguable cause of action. I propose to dismiss the defendant's application with costs to be taxed and paid immediately.
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