Riske v Oxley Insurance Brokers Pty Ltd

[2013] NSWSC 1381

Supreme Court

New South Wales

Medium Neutral Citation:	Riske v Oxley Insurance Brokers Pty Ltd [2013] NSWSC 1381
Hearing dates:	3 September 2013
Decision date:	03 September 2013
Before:	McCallum J
Decision:	Plaintiff directed to bring in an amended statement of claim in accordance with these reasons within 7 days
Catchwords:	DEFAMATION - imputations - no question of principle
Category:	Interlocutory applications
Parties:	Lee Hendrick Riske (first plaintiff) Stephen Edward Charles Cook (second plaintiff) Oxley Insurance Brokers Pty Ltd (first defendant) Rod McLean (second defendant)
Representation:	Counsel: P Wass (plaintiffs) D Caspersonn (defendants) Solicitors: Priest McCarron (plaintiffs) Lee &Lyons Lawyers
File Number(s):	2013/184125
Publication restriction:	None

Judgment - ex tempore

1. HER HONOUR: These are proceedings for defamation commenced by Mr Lee Riske and Mr Stephen Cooke against their former employer, Oxley Insurance Brokers Pty Limited and its principal, Mr McLean. The proceedings arise out of the event of termination of that employment. The statement of claim pleads three allegedly defamatory publications. Two are libels. The third is a letter annexed to the pleading.

1. The proceedings came before Garling J on 15 July 2013 when, more or less by consent, his Honour made orders restraining the defendants from continuing to publish representations of the kind reflected in the defamatory imputations relied upon by the plaintiffs. Shortly after that hearing, the plaintiffs consented to orders that they file and serve by 28 August 2013 any motion to extend the limitation period and that the proceedings be stood into the present defamation list, which commenced yesterday.

1. The foreshadowed motion to extend the limitation period arose from what turned out to be a typographical error in the pleading, namely, that the third matter complained of was alleged to have been published "on and after November 2011"; whereas in fact it was intended to assert that the relevant conversations occurred on and after November 2012.

1. The defendants were informed accordingly, late on Friday afternoon. However, when the proceedings came before me yesterday, I was informed that the defendants objected to the plaintiffs' imputations. The matter was stood over for hearing today to determine those objections.

1. In those circumstances, the defendants seek their costs thrown away by reason of the amendment consisting of the change of the date in paragraph 13 of the statement of claim from "2011" to "2012". In my view, the costs occasioned by that amendment must be minimal. I do not think that amendment warrants the making of a discrete costs order. Those are the kind of costs which, in my view, can appropriately be accommodated in the final determination of the proceedings and are not such as to warrant a discrete order.

1. The imputations argument is a short point. The two libels are pleaded in the following terms. As to the first matter complained of, it is alleged that the defendants said:

Unfortunately, I had to terminate the employment of Lee Riske due to a serious and wilful misconduct issue.

1. As to the third matter complained of, it is alleged that the defendants published the following words:

I had to terminate the employment of Lee Riske and Stephen Cooke due to a serious and wilful misconduct issue.

1. The libel is the second matter complained of. The letter sued on includes the following statement:

As discussed I understand your decision and the importance of you maintaining a relationship with your previous adviser Stephen Cooke but unfortunately I had to terminate his employment due to a serious and wilful misconduct issue.

1. In respect of each matter complained of the plaintiffs rely on the following imputations (with appropriate changes according to which plaintiff is referred to in the relevant matter complained of):

1. That the plaintiff's conduct in his employment was so serious as to warrant termination.

2. That the plaintiff seriously and wilfully misconducted himself in the course of his employment so as to warrant his termination.

1. Mr Caspersonn, who appears for the defendants, submitted, first, that imputation 1 is internally inconsistent in that it accuses the first plaintiff not of any misconduct but of "serious conduct" in his employment which, as the submission went, entails no vice.

1. In my view, however, the vice of that conduct, which is the act or condition allegedly attributed to the plaintiffs by the matters complained of, is informed by the balance of the imputation explaining the consequence as being that the conduct in question warranted the plaintiff's termination. Those additional words in my view make it plain that the "serious conduct" in question was not that of a good and earnest employee but conduct entailing some measure of discreditable conduct. I am further persuaded to allow the imputation to stand in that form by the fact that the meaning must necessarily be informed by the context in which the words were said. In the case of the two slanders, that is unknown. I do not think the imputation is objectionable for that reason.

1. Separately, Mr Caspersonn submitted that the imputations do not differ in substance. Ms Wass, who appears for the plaintiffs, submitted that the difference derives from, first, the fact that the second imputation refers to misconduct as opposed to conduct, which conveys a deeper sense of impropriety. Secondly, Ms Wass relied upon the fact that the second imputation accuses the plaintiff of having engaged in such conduct "wilfully", which is a more serious allegation than is captured in the first imputation.

1. Ms Wass submitted that, in the case of the two slanders, it is important to allow the plaintiffs to have both imputations, since the precise terms and context of the publications will not be known until trial.

1. In my view there is force in those submissions. The plaintiffs should be allowed to have both imputations go to trial in respect of the first and third matters complained of.

1. The second matter complained of is a libel which, as I have said, is set out in annexure A to the statement of claim. The terms of the imputation are plainly drawn in terms from the matter complained of. This is one of those cases in which there is no vice in pleading the matter in that way, since the meaning of the imputation is clear and adequately distils the defamatory sting complained of. In those circumstances, Ms Wass very properly acknowledged that there is no need for the first imputation, the second imputation arising so clearly from the matter complained of that there can be little debate about the issue.

1. For those reasons, I would understand the plaintiffs to have indicated that they would not press imputation 1 in respect of the second matter complained of. The date in paragraph 13 also requires amendment. I direct that the plaintiffs bring in an amended statement of claim in accordance with these reasons within 7 days.

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