Samata v Fraser
[2012] WADC 118
•30 JULY 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SAMATA -v- FRASER [2012] WADC 118
CORAM: REGISTRAR KINGSLEY
HEARD: 13 APRIL 2012
DELIVERED : 30 JULY 2012
FILE NO/S: CIV 57 of 2010
BETWEEN: SPYROS SAMATA
First Plaintiff
SHARON SAMATA
Second PlaintiffAND
SIMON FRASER
First DefendantSHIRE OF GINGIN
Second DefendantTERRY LOFTUS
Third DefendantSUN CITY PUBLISHING PTY LTD
Fourth Defendant
Catchwords:
Practice - Defamation proceeding - Application to strike paragraphs of the statement of claim on the ground of being embarrassing
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
First Plaintiff : Ms R L Sorgiovanni
Second Plaintiff : Ms R L Sorgiovanni
First Defendant : Mr R W Richardson
Second Defendant : Mr R W Richardson
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
First Plaintiff : Sorgiovanni Legal
Second Plaintiff : Sorgiovanni Legal
First Defendant : DLA Piper Australia
Second Defendant : DLA Piper Australia
Third Defendant : Not applicable
Fourth Defendant : Not applicable
Case(s) referred to in judgment(s):
Bruce v Odhams Press Ltd [1936] 1 KB 697
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
David Regan & Co Pty Ltd v West Australian Newspapers Ltd [2007] WASCA 14
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Morgan v Odhams Press Ltd (1979) 1 WLR 1239
Prichard v Krantz (1984) 37 SASR 379
Taylor v Jecks [1993] 10 WAR 309
REGISTRAR KINGSLEY: The plaintiffs (the Samatas) have brought an action in defamation against the first and second defendants (Fraser and the Shire respectively).
By an application dated 5 December 2011, Fraser and the Shire seek to strike out the Samatas' statement of claim on the grounds of embarrassment. Defendants' counsel noted that a second order of the chamber summons sought dismissal of the action but did not press that argument. In defendants' counsel's submission, if I found there was some substance in the Samatas' claim, properly pleaded, then I should not dismiss the action.
Samatas' action
The Samatas were employed by the Shire and Fraser was the CEO of the Shire. On 13 December 2008 the Shire held a Christmas party for its employees. The Samatas' plead that at the party, Fraser instructed the party goers that they may take alcohol from the function. When leaving the party, the Samatas took five bottles of wine and three stubbies of beer.
The Samatas' plead that on 17 December they were separately called to a meeting with Fraser at the Shire's offices and it was put to the Samatas that they had stolen the alcohol. On 17 December 2008 the employment of the Samatas was terminated.
The Samatas then go on to plead at pars 15 – 25 the publication of defamatory statements and imputations, for which Fraser and the Shire are liable, such that the Samatas have suffered damage. The paragraphs are reproduced at appendix 1.
Defendants' counsel argues that the statement of claim is embarrassing in that:
1.The plaintiffs are not identified in the pleadings.
2.The imputations are not pleaded out.
3.In any event the imputations as pleaded are embarrassing.
Identification of the Samatas
The plaintiffs' counsel submits that the Samatas' cause of action is based on the natural and ordinary meaning of the words published. Plaintiffs' counsel expressly disavows that the action is based on a legal, or true, innuendo. At page 27 of the transcript, plaintiffs' counsel submits that the cause can be maintained on the ordinary and natural meaning of the words even though the Samatas are not identified. This is because, as plaintiffs' counsel submits, evidence may be led that certain people in the community knew, just from reading the ordinary meaning of the words, to whom those words were referring.
The authorities are clear that where the publication is not ex facie defamatory, or did not refer by name to the plaintiff, or where the identity of the plaintiff is not evident from the published words, then the plaintiff must be identified. The test is whether a reasonable person would understand the words as referring to the plaintiff. Thus it would be unnecessary to prove who the Prime Minister was if an article only referred to the plaintiff as the Prime Minister. But if the plaintiffs' identity is not one of general notoriety then it is for the plaintiffs to prove that the newspaper article was published to persons who knew who the plaintiffs were (see Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 89; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 640).
As it is for the plaintiff to prove that the newspaper article was published to persons who knew who the plaintiffs were, it is for the plaintiffs to plead the material facts on which the plaintiffs rely to establish that proof (see Bruce v Odhams Press Ltd [1936] 1 KB 697). Further, in this case, plaintiffs' counsel submits that there was a group within the community possessed of special knowledge to connect the statements with the Samatas. It is well settled that the Samatas, in this case, must give sufficient particulars of the special knowledge so that Fraser and the Shire are not taken unaware (see Morgan v Odhams Press Ltd (1979) 1 WLR 1239, 1242).
Whilst the Samatas have omitted material facts and particulars from the pleading, I do not purpose to strike the claim but give the Samatas the opportunity to amend the statement of claim.
The imputations are not pleaded
The second complaint of defendants' counsel is that par 20 does not plead out the imputations. The Samatas' plead at par 19 that pars 18(a) and 18(b) are, in their natural and ordinary meaning, defamatory of the Samatas. Paragraph 20 pleads that pars 18(a) and 18(b) certain imputations which are defamatory of the Samatas.
Taylor v Jecks [1993] 10 WAR 309 is authority for the proposition that a plaintiff in a defamation action must plead the imputations which he seeks to make good at trial and must plead them separately, except when the words complained of are so explicit as to make that unnecessary. Anderson J [314] comments that whilst there is some uncertainty for this rule, it is accepted practice that the plaintiff set out in the statement of claim the meanings he contends arise from the words complained of in their natural and ordinary meaning.
Plaintiffs' counsel submits that this has been done in par 20. However, in my opinion it is in par 20 that the issue of imputation is raised and it is at that paragraph the imputations be pleaded out. This is a matter that may be corrected and the paragraph is not struck.
The imputations are in any event embarrassing
Defendants' counsel submits that the imputations as pleaded out is par 24 are embarrassing as they are vague and repetitious. There is some importance to the imputation being properly pleaded out because the plaintiff is, in some sense, bound by the meanings which are to be attributed to the words in his statement of claim. A defendant needs to know the meanings attributed to the words by the plaintiff in order to decide whether to assert that the words do not bear those meanings, to justify the meanings, or to apologise (see Prichard v Krantz (1984) 37 SASR 379 per King CJ, 386).
Turning to the pleaded imputations pars 24(a) and 24(b) plead that:
(a)the Samatas engaged in criminal conduct; and
(b)the Samatas stole from their employer.
Axiomatically, if the Samatas stole from their employer then they engaged in criminal conduct.
If it is contended that the Samatas engaged in criminal conduct other than stealing from their employer, then par 24(a) needs to be pleaded with particularity. In my opinion, as the Samatas have not pleaded par 24(a) with the necessary precision it ought to be struck.
Paragraph 24(f) pleads that the Samatas character now renders them unemployable. Defendants' counsel submits that this imputation is plainly incapable of being conveyed by the words pleaded in par 22 of the statement of claim. David Regan & Co Pty Ltd v West Australian Newspapers Ltd [2007] WASCA 14 is authority for the proposition that an imputation will be struck out at an interlocutory level only if it is plainly incapable of being conveyed by the words complained.
In my opinion, it is arguable that, in a small country town, the words complained could render the Samatas unemployable. But that is the consequence of the defamation as pleaded being made out. In my opinion, it is not an imputation that could reasonably be attributed to the words. Paragraph 24(f) is struck out.
Paragraph 24(g) pleads the Samatas were deceitful in that they planned and colluded with fellow employees of the Shire. Defendants' counsel submits that this imputation is plainly incapable of being conveyed by the words used.
In my opinion, it is arguable that the words as pleaded do convey a meaning of deceit. That is a matter for the judge, as the trier of fact, to determine. I do not propose to strike par 24(g).
Paragraphs 24(h) and 24(i) plead the Shire and Fraser maintained the statements. I take it these paragraphs reflect a plea in relation to republication. It is clear that the publisher of defamatory matter may be liable for the republication of the defamatory material.
In the context of this pleading it appears the cause of action is based on the original publication but the damages claimed include injury as a result of republication. In my opinion, that being the case, it is embarrassing to include pars 24(h) and 24(i) under the heading 'Particulars of Defamatory Imputation'. In my opinion, the republication must be pleased separately.
Conclusion
In my opinion, there is some substance to the Samatas' claim. It will not strike the statement of claim. However, the statement of claim does, in my opinion, need to be repleaded.
In light of my reasons, I will hear counsel on the formulation of orders, and to costs.
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