Singh v Singh
[2017] WASC 255
•31 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SINGH -v- SINGH [2017] WASC 255
CORAM: LE MIERE J
HEARD: 1 AUGUST 2017
DELIVERED : 31 AUGUST 2017
FILE NO/S: CIV 3099 of 2016
BETWEEN: SAJIT SINGH
Plaintiff
AND
AMINDER PAL SINGH
First DefendantHARBHAJAN KAUR
Second DefendantPIARA SINGH
Third Defendant
Catchwords:
Practice and procedure - Strike out application - Defamation - Turns on own facts
Legislation:
Nil
Result:
Application allowed in part only
Category: B
Representation:
Counsel:
Plaintiff: Mr C Chenu
First Defendant : Mr M C Goldblatt
Second Defendant : Mr M C Goldblatt
Third Defendant : Mr M C Goldblatt
Solicitors:
Plaintiff: Bennett + Co
First Defendant : Lavan
Second Defendant : Lavan
Third Defendant : Lavan
Case(s) referred to in judgment(s):
Barach v The University of New South Wales [2011] NSWSC 1327
Berezovsky v Forbes Inc [2001] EWCA Civ 1251
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Griffith v Australian Broadcasting Corporation [2002] NSWSC 86
Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694
Mapp v Newsgroup Newspapers Ltd [1998] QB 520
Singleton v John Fairfax & Sons Ltd (Unreported, NSWSC, 20 February 1980)
Toben v Milne [2014] NSWCA 200
Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
LE MIERE J: The plaintiff has sued the defendants as the authors of a letter which he says defames him. The defendants have applied to strike out [8] and [9] of the amended statement of claim in which the plaintiff pleads the imputations he claims are conveyed by the letter.
The defendants challenge [8] and [9] of the amended statement of claim on two bases. First, the amended statement of claim is vague and embarrassing and will prejudice or delay the fair trial of the action because the statement of claim does not particularise the specific passages or sentences of the letter said to convey each imputation. Secondly, [8] and [9] of the amended statement of claim disclose no reasonable cause of action or are vague and embarrassing and will prejudice or delay the fair trial of the action because the pleaded imputations are not capable of arising or are embarrassing in form.
The defendants' challenge to [8] and [9] of the amended statement of claim on the ground that they are defective because they do not particularise the portions of the letter said to give rise to each imputation fails. In relation to the defendants' challenge to particular imputations, [8.1(b)], [8.8], [8.9] [8.10], [8.11] and [8.17] will be struck out, with leave to re‑plead. The plaintiff will amend particular B(viii)(b) of the particulars subjoined to [9] of the amended statement of claim by deleting the words 'from the congregation'. The defendants' summons will be otherwise dismissed. Costs will be in the cause.
The particulars challenge
The letter on which the plaintiff sues is addressed to the general secretary, Sikh Gurdwara Perth Inc and states that is copied to all members of Sikh Gurdwara Perth Inc. It consists of six pages divided into 32 numbered paragraphs. The plaintiff pleads that the letter in its natural and ordinary meaning gives rise to 18 imputations and a further three imputations are conveyed by way of true innuendo. The defendants say that [8] and [9] of the amended statement of claim which plead the alleged imputations are defective because they do not particularise the specific passages or sentences said to be conveyed by each imputation. The defendants say that pleading imputations in this way is vague and embarrassing and likely to prejudice, embarrass or delay the fair trial of the action.
The plaintiff says that this objection to the pleading is a matter for particulars, not a strike out point. The defendants submit that although ordinarily this objection to the pleading might have been dealt with by way of a request for further particulars, it is convenient, from both time and cost perspectives for both the court and the parties, that the issue be resolved simultaneously with the defendants' other objections to the pleaded imputations.
The defendants objected to the original statement of claim by letter. The objections took two forms. First, the defendants objected that the statement of claim was defective because it did not particularise the specific passages in the letter said to convey each imputation. Secondly, the defendants said that numerous pleaded imputations were defective for reasons of capacity or form. The plaintiff responded to those objections by amending his statement of claim. The defendants objected to the amended statement of claim on the same two bases that they had objected to the original statement of claim; they said it was defective in that it did not particularise the specific passages in the letter said to convey each imputation and further that numerous pleaded imputations were defective for reasons of capacity or form. The plaintiff responded that the defendants should apply to strike out those imputations they assert are defective for reasons of capacity or form and that the question of particulars relating passages in the letter to the pleaded imputations should be left until after the strike out application was resolved because there is no purpose in considering whether or not particulars should be given of imputations which might be struck out.
The plaintiff's approach is more in accordance with the proper approach to case management to advance the litigation in the most efficient and cost effective way. For the reasons to be stated, six imputations will be struck out and the plaintiff will have leave to re‑plead. The plaintiff may plead new imputations, or at least imputations in a different form, in place of those struck out and may amend some of the imputations not struck out so as to avoid repetition. In those circumstances, it is not efficient to require particulars linking the pleaded imputations to particular passages in the letter until the imputations are fixed. When the imputations are fixed the defendants may, if they see fit, renew their request of the plaintiff for particulars of the specific passages or sentences said to give rise to each imputation. If the defendants do so and the matter is not resolved by conferral then the defendants may renew their application to the court for the requested particulars.
Imputation 8.1
Imputation 8.1(a) is:
The plaintiff as chairman of the board of trustees of a religious association discriminates against certain members of the association on the basis of their religious practices and beliefs.
The defendants say that the letter is not reasonably capable of bearing that meaning.
On an application to strike out on the ground of capacity, the threshold for striking out is a high one. The judge's function at the capacity stage is to determine 'the outside boundaries of the possible range of meanings': Gatley on Libel and Slander, (12th ed) [3.14] citing Mapp v Newsgroup Newspapers Ltd [1998] QB 520. The capacity determination is 'an exercise in generosity not parsimony'; while it involves a 'matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant': Berezovsky v Forbes Inc [2001] EWCA Civ 1251 [16] (Sedley LJ). One reason great caution is exercised at the interlocutory stage is that the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that 'no reader could reasonably understand the words to bear any meaning outside the range delimited … by the judge; and that it would be "perverse" for any jury to do so': Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694 [9] (Simon Brown LJ, Mummery & Mance LJJ agreeing).
The plaintiff says that imputation 8.1 arises from [3] and [8] of the letter:
3.Mr Satjit Singh (Chairman board of trustees) has said membership of SGPI is only for Kesadhari and Amritdhari Sikhs. Why has the MC given membership to non‑kesadhari and non‑amritdhari Sikhs after January 2014. There is no such requirement in the constitution. Membership should be open to all Sikhs without discrimination including children of long serving lifetime members.
…
8.Mr Satjit has said that only Jat Sikhs should control the Gurdwara.
The defendants say that the letter refers to Kesadhari and Amritdhari Sikhs but says nothing about religious practices and beliefs. The ordinary reader does not know who Kesadhari and Amritdhari Sikhs are or what distinguishes them from other Sikhs and does not know whether they are regional or tribal or other groups of Sikhs. Similarly, the statement that only Jat Sikhs should control the Gurdwara means nothing to an ordinary reader who does not know who are Jat Sikhs and what is the Gurdwara.
The imputation should not be struck out on the ground that it is incapable of arising. It is not outside the boundaries of the possible range of meanings. To discriminate in the context of the letter means to make a prejudicial distinction or adversely differentiate between different groups of Sikhs. Paragraph 3 of the letter says that the plaintiff has said that Sikhs who are not Kesadhari or Amritdhari should not be members of the association, notwithstanding that Sikhs who are not Kesadhari or Amritdhari are members. It is not unarguable that ordinary reasonable readers would understand the letter to say that the plaintiff discriminates against members of the association who are not Kesadhari or Amritdhari and that it is because of their religious practices and beliefs. The letter does not refer to the religious practices and beliefs of Sikhs who are not Kesadhari or Amritdhari or state that Kesadhari or Amritdhari Sikhs have different religious practices and beliefs. However, it is not unarguable that a reasonable reader would understand from the context of the letter that Kesadhari and Amritdhari Sikhs have different religious practices and beliefs than Sikhs who are not Kesadhari or Amritdhari. That is sufficient for the imputation to survive a strike out application.
The plaintiff does not press imputation 8.1(b) and so it will be struck out.
Imputation 8.4
Imputation 8.4 is:
The plaintiff was guilty of misconduct warranting the imposition of religious punishment.
The defendants say that the word 'misconduct' is a weasel word; it conveys a wide gradation of activities and is, therefore, vague and embarrassing as the defendants are left in doubt as to what is said to be the defamatory act or condition asserted of, or attributed to, the plaintiff or with which he is charged by the letter. Further, the defendants say that the embarrassment is exacerbated by the causative link between the unidentified misconduct and the unidentified religious punishment of unknown severity or significance.
Language is such an imprecise thing that many words may carry a range of meanings. In the defamation lexicon a weasel word is one which has a variety of meanings so that it is ambiguous or equivocal. The meaning of 'misconduct' according to the Macquarie Dictionary ranges from improper conduct or wrong behaviour to unlawful conduct by an official in regard to his or her office.
In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gleeson CJ said at 137 that the degree of specificity required in the formulation of a defamatory imputation must be related to the nature and content of the defamatory matter. Gleeson CJ said at (137 ‑ 138):
Almost any attribution of an act or condition to a person who is capable of both further refinement and further generalisation. In any given case a judgment needed to be made as to the degree of particularity or generality which is appropriate … and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of the particular case, rather than considerations of the possibility of linguistic refinement.
Gleeson CJ said that the issue that must be decided in each case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.
The plaintiff refers to [5] of the letter which refers to the board of trustees having investigated the conduct of the plaintiff and found him guilty of misconduct. The defendants say that a reasonable reader would understand that conduct to be the conduct referred to in [4] of the Letter. Paragraphs 4 and 5 of the letter are:
4.On 19 April 2009 Mr Satjit Singh following an argument in the Darbar hall SGP Bayswater approached Mrs Jagkeerat Kaur Grewal in the langar hall and said 'I will slap you on the face'. The MC has so far refused to take any disciplinary action against him. So do they all support and encourage his behaviour of violence against women?
5.The board of trustees SGPI on 30 April 2009 after investigations into the conduct of Mr Satjit Singh found him guilty of misconduct and issued Tankah against him to come to the Darbar Sahib and participate in Ardass for forgiveness, Mr Jatinder Pal Singh Grewal had agreed to participate in the Ardass. Mr Satjit Singh refused to obey the Tankah. Under the constitution rule 10.6 membership is automatically cancelled if an appeal is not filed within 30 days of the Tankah to the MC.
A reader of the letter might understand the conduct of the plaintiff referred to in [5] of the letter to be the conduct which is described in [4]. If the conduct referred to in [5] of the letter is the same conduct as referred to in [4] of the letter then the act or condition attributed to the plaintiff by imputation 8.4 is capable of further refinement. However, it is arguable that a reader of the letter might reasonably understand the misconduct attributed to the plaintiff in [5] of the letter not to be the same conduct that is attributed to the plaintiff in [4] of the letter. If the misconduct is not the same conduct as that attributed to the plaintiff in [4] of the letter then the plaintiff cannot be required to be more specific than to say that the letter attributes to him that he was guilty of misconduct. Accordingly, considerations of practical justice do not require that the plaintiff be more specific.
The imputation further says that the board of trustees issued Tankah against the plaintiff to come to the Darbar Sahib and participate in Ardass for forgiveness. A reader might from [4] and [5] of the letter in their context reasonably understand that to be a reference to some form of religious punishment and hence that the letter attributes to the plaintiff that he was guilty of misconduct warranting the imposition of religious punishment. The letter does not explain the specific meaning or content of Tankah, the Darbar Sahib or Ardass. Therefore, considerations of practical justice do not require that the plaintiff specify the religious punishment being referred to. The imputation is not unarguable.
Imputation 8.5
Imputation 8.5 is:
The plaintiff is a leader within a religious association who condones the use of profane, offensive and disrespectful language by one member of the religious association towards another member.
The defendants say that the pleading contains a number of imputations rolled into one and should be pleaded as distinct imputations. Each of the words 'profane', 'offensive' and 'disrespectful' gives rise to a distinct act or condition asserted of or attributed to the plaintiff or with which he is charged.
Many authorities have dealt with the rules relating to the pleading of imputations. Whether an imputation has been properly pleaded is to be determined as a matter of practical justice. However, the following propositions emerge from the authorities. First, distinct meanings should be pleaded. Secondly, distinct meanings should be separately pleaded ‑ because of the potential for a rolled up plea to cause confusion. Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged. Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning.
In Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Simpson J considered an objection to the imputation that the plaintiff 'is an unprincipled and dishonest person' on the ground that the imputation is a rolled up or composite imputation containing two separate components and is accordingly impermissible. Her Honour said at [15] that one approach is to identify whether what is contained in the imputation attributes to the plaintiff more than one condition or quality that are independent of one another; or whether, even where multiple adjectives or descriptors are used, they, in combination, express a single (even if composite) condition or quality. Her Honour opined:
In my opinion the correct approach is to identify whether or not the imputation is intended to convey a single characteristic of the plaintiff (as portrayed through the matter complained of), even if that characteristic is made up of more than one component, or whether it is intended to convey two separate and distinct characteristics of the plaintiff. Here the two words - 'unprincipled' and 'dishonest' ‑ are not synonymous but are capable of containing significant overlap.
It would, of course, be possible for the plaintiff to plead two separate imputations, one that she was dishonest, and one that she was unprincipled. One wonders whether such a pleading would be met with a complaint that the two imputations did not differ in substance.
I have, with some hesitation, come to the view that the imputation does not fail for this reason. In my opinion 'unprincipled' and 'dishonest' are capable of conveying a notion of a characteristic of the plaintiff’ which is not adequately conveyed by either word individually, nor, indeed, by two separate imputations pleading the two characteristics [18] ‑ [20].
If an imputation can be broken up, a plaintiff is not required to break it up merely because there is a possibility a defendant could plead a defence such as truth only to the broken up version: see Barach v The University of New South Wales [2011] NSWSC 1327 [26] (Walmsley AJ).
Imputation 8.5 is not an impermissible 'rolled up' or 'composite' imputation attributing three separate conditions to the plaintiff. Profane, offensive and disrespectful are overlapping but different concepts. The words 'profane, offensive and disrespectful' are capable of conveying a notion of a characteristic of the plaintiff which is not adequately conveyed by any of the words individually or by three separate imputations. The imputation is that the plaintiff condones the use of language which has the qualities of being profane and offensive and disrespectful. That imputation has only one defamatory sting or barb.
I do not find that imputation 8.5 is confusing or will lead to practical injustice to the defendants. The defendants know that the case they have to meet is that the plaintiff condones language which has all three qualities.
Imputation 8.6
The imputation is:
The plaintiff is a leader within a religious association who encourages the use of profane, offensive and disrespectful language by one member of the religious association towards another member.
The defendants apply to strike out this imputation on the same grounds as imputation 8.5. The application fails for the same reasons.
Imputation 8.8
The imputation is:
The plaintiff acted in dereliction of his duty as chairman of the board of trustees of the religious association by ignoring and covering up complaints of serious misconduct made by a member of the religious association against another member.
The defendants say this is an impermissible 'rolled up' or 'composite' plea. The act of 'ignoring' and 'covering up' are separate and distinct and arguably inconsistent charges.
The plaintiff says that the gist of the imputation is that the plaintiff acted in dereliction of his duty by ignoring complaints, in the sense of doing nothing to respond to legitimate complaints, and covering up the complaints. I find that the imputation is not an impermissible rolled up or composite plea. The imputation attributes to the plaintiff a single act made up of more than one component - he acted in dereliction of his duty by not responding to serious complaints of misconduct and by covering up those serious complaints of misconduct.
However, the imputation should be struck out because it is confusing in relation to the meaning for which the plaintiff contends. The word 'ignore' has a range of meanings. The most relevant given by the Online Oxford English Dictionary (OED) is 'to refuse to take notice of; not to recognise; to disregard intentionally, leave out of account or consideration, shut "one eyes to"'. The usual meaning of 'cover up' is to attempt to prevent people discovering the truth about a serious mistake or crime. The notions of 'ignore' and 'cover up' are usually inconsistent. The pleaded imputation fails to inform the court and the defendants of the precise meaning contended for by the plaintiff. The imputation should be struck out with leave to re‑plead.
Imputation 8.10
Imputation 8.10 is:
The plaintiff despotically governs the religious association of which he is a member.
The defendants say that this imputation is repetitive of imputation 8.9 which is that the plaintiff exercises control over the religious association of which he is a member in an autocratic manner.
The plaintiff says that 'autocratic' means one exercises absolute power, whereas 'despotically' connotes an absolute power that is exercised in a tyrannical or cruel manner.
A plaintiff may not plead imputations which are not different in substance. An imputation must be taken to include all other imputations which do not differ in substance. Different tests have been stated for determining whether pleaded imputations are different in substance. In Toben v Milne [2014] NSWCA 200, at [12], Beasley P and Ward JA referred to two possible ways suggested by Hunt J in Singleton v John Fairfax & Sons Ltd (Unreported, NSWSC, 20 February 1980) (Hunt J) to test whether pleaded imputations differ in substance. The first was to ask what would be required to prove justification to each imputation; the second is to ask what may be proved by way of justification to each imputation. In Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 Simpson J at [67] observed that in the usual case the question whether pleaded imputations were different in substance could only be answered by reference to the terms in which the imputations had been pleaded but it is permissible on occasions to look to the matter complained of in order to determine the context in which the alleged defamatory statements were made. In Toben v Milne Beasley P and Ward JA said at [18] that the tests stated in Singleton v John Fairfax and Griffith v Australian Broadcasting Corporation are no more than available means by which a court may go about the task of determining whether imputations differ in substance. Depending upon the particular case, it may be sufficient for the court to have regard only to the words themselves or it may be appropriate to look at the matter complained of to determine the context in which it is said the implication arises.
The words of the two imputations do not convey a difference of substance in meaning. 'Autocrat' and 'despot' have similar or overlapping meanings. The OED defines 'autocrat' as a ruler who has absolute power of government; a person who has controlling authority or influence, an imperious or domineering person and 'despot' as an absolute ruler of a country; any ruler who governs absolutely or tyrannically, any person who exercises tyrannical authority. To rule despotically is capable of meaning to rule not only absolutely but tyrannically and oppressively. The OED notes that the modern use of 'despot' is usually hostile. However, imputations 8.9 and 8.10 do not convey, or sufficiently convey, the difference in meaning that Mr Chenu, counsel for the plaintiff, submitted they are intended to convey. Referring to the letter does not make clear the difference in meaning between 'autocrat' and 'despot' which the plaintiff says causes the two imputations to differ in substance. The plaintiff must elect which imputation he wishes to proceed to trial. Alternatively, the plaintiff may amend one or both of the imputations to make clear the difference in substance between the two imputations which is intended by the plaintiff. That is best effected by striking out [8.9] and [8.10] with leave to re‑plead.
Imputation 8.11
The imputation is:
The plaintiff considers himself entitled to despotically govern the religious association of which he is a member.
The defendants say that the imputation is repetitious of the imputation pleaded in [8.10] and that embedded within that imputation is that the plaintiff considers he is entitled to do so. The defendants say the imputation adds nothing to the imputation pleaded in [8.10].
The plaintiff says that the difference between imputation 8.10 and 8.11 is that the former refers to the act of the plaintiff in governing despotically and the latter refers to the state of mind of the plaintiff, a condition. The plaintiff says that the imputation that the plaintiff considers himself entitled to govern the association despotically arises from certain paragraphs of the letter. For example, [15] says that the plaintiff was not happy with the discussion at a meeting of the board of trustees so he threatened a member by saying that he will call his private security and have him thrown out of the Gurdwara. The letter asks rhetorically '[w]hat right does he have to throw a member of the sangat out of the Gurdwara?' The plaintiff also refers to [7] of the letter which says that the plaintiff says he is the owner of eight IGA stores and has 800 employees and he can give membership to all of them and then he can throw anybody out of the Gurdwara and nobody can defeat him in the Gurdwara elections.
There is a difference between the two imputations if reference is made to the terms of the two imputations alone. The nub of the first imputation is the actions of the plaintiff whereas the nub of the latter imputation is the plaintiff's state of mind. Those are two different things. A person may consider he is entitled to behave in a certain way without doing so, just as a person may have an intention to carry out an act without having done so.
It is necessary to also refer to the material complained of to determine whether the imputations differ in substance in the context in which the alleged defamatory statements were made. The statements in [7] and [15] of the letter describe conduct of the plaintiff. Any attribution of a state of mind to the plaintiff arises as an inference from the stated conduct. It may be that the different conduct attributed to the plaintiff in each of [15] and [7] of the letter might give rise to different and more precise imputations. However, in so far as they give rise to a more general imputation it is that the plaintiff acted despotically or dictatorially and any attribution to the plaintiff of a state of mind arises from the stated conduct. In those circumstances imputation 8.11 does not differ in substance from imputation 8.10 or imputation 8.9. The plaintiff should elect on which of those imputations he wishes to proceed to trial. Alternatively, he may amend one or more of the imputations so that they differ in substance. The appropriate course is to strike out [8.9], [8.10] and [8.11] with leave to re‑plead.
Imputation 8.12
Imputation 8.12 is:
The plaintiff acted against the constitution of the religious Association of which he is a member by dissolving its building committee.
The defendants say that the pleaded imputation either is not capable of arising from the letter or it is vague and embarrassing.
Paragraph 31 of the letter says that the building committee 'was unceremoniously and illegally dissolved by [the plaintiff] and the [management committee] against the rules of the constitution'. The defendants say that might convey to a reasonable reader that the plaintiff participated in the management committee dissolving the building committee but is incapable of meaning that the plaintiff dissolved the building committee.
Words expressly stating that the plaintiff illegally dissolved the building committee convey to a reasonable reader that the plaintiff illegally dissolved the building committee unless the words complained of are supplemented by words which show that the plaintiff did not do so or the reader knew facts which show that the plaintiff could not or did not do that. The letter says that the building committee was illegally dissolved by the plaintiff and the management committee against the rules of the constitution. At this stage the court is not determining whether an ordinary reasonable reader would understand the letter to mean that the plaintiff dissolved the building committee. The court is only concerned with whether that meaning is within the boundaries of the possible range of meanings. In my opinion it is. The letter says that the building committee was dissolved by the plaintiff and the management committee and that that was done 'unceremoniously and illegally' and 'against the rules of the constitution'. It is not unarguable that a reasonable person would understand the letter to be conveying that the plaintiff dissolved the building committee and not merely that he participated in doing so as a member of the management committee. Indeed, the letter says that the plaintiff is the chairman of the board of trustees and does not say that he is a member of the management committee. The imputation should not be struck out on the grounds that it is not capable of being conveyed by the letter.
The defendants' alternative argument is that the imputation is bad in form because it is vague and embarrassing in suggesting that a person, qua member, had any power to, or could effect, the dissolution of a committee of an association. That misses the point. First, the imputation charges the plaintiff that he dissolved the building committee 'unceremoniously', 'illegally' and 'against the rules of the constitution'. Secondly, the imputation was not that the plaintiff dissolved the building committee 'qua' member, that is in his capacity of a member and exercising powers he lawfully held as a member. The imputation is that he is a member and he dissolved the committee 'against the constitution' of the association, that is without lawful authority to do so. The imputation should not be struck out on that ground.
Imputation 8.13
Imputation 8.13 is:
The plaintiff acted against the interests of the religious association of which he is a member by dissolving its building committee.
The defendants submit that this imputation suffers from the same deficiencies as imputation 8.12. The application to strike out imputation 8.13 fails for the same reasons as the application to strike out imputation 8.12 fails.
Imputation 8.14
Imputation 8.14 is:
The plaintiff holds and expresses bigoted views.
The defendants say that this rolls two imputations into one plea. The defendants say that embedded within the imputation of the charge of expressing a view is that the view is held by the plaintiff but the converse is not necessarily the case - a view may be held, but not expressed. The defendants say the words 'hold and' are, therefore, unnecessary and add nothing to the imputation pleaded.
The imputation is not an impermissible 'rolled up' imputation attributing two separate conditions to the plaintiff. The imputation that the plaintiff holds and expresses bigoted views is capable of conveying a characteristic of the plaintiff which is not adequately conveyed by two separate imputations. The pleading will not prejudice, embarrass or delay the fair trial of the action. The meaning is quite plain. The defendants know the case they have to meet.
Imputations 8.17 and 8.18
These imputations are:
8.17The plaintiff as chairman of the board of trustees of the religious association treats members of the religious association in a manner that is unjust; and
8.18The plaintiff as chairman of the board of trustees of a religious association treats members of the religious association in a manner that is deplorable.
The defendants say that each of the words 'unjust' and 'deplorable' is a weasel word which conveys a wide range of possible attributes of varying degrees of disparagement and is therefore vague and embarrassing. The defendants say they are left in doubt as to what is said to be the defamatory act or condition asserted of, or attributed to the plaintiff or with which he is charged by the letter. As a result, they say, the pleas fall short of setting out the final distillation of the alleged defamatory meaning or meanings. Further, the defendants say that in its present form imputation 8.18 is repetitious of imputation 8.17, the apparent distinction between the words 'unjust' and 'deplorable' being unclear.
The plaintiff says in effect that imputation 8.17 means that the plaintiff treats people in an unjust manner. 'Unjust' has a range of meanings. The Macquarie Dictionary gives eight meanings for the adjective 'just':
1 actuated by truth, justice, and lack of bias: to be just in one's dealings.
2.in accordance with true principles; equitable; even‑handed: a just award.
3.based on right; rightful; lawful: a just claim.
4.agreeable to truth or fact; true; correct: a just statement.
5.given or awarded rightly, or deserved, as a sentence, punishment, reward, etc.
6.in accordance with standards, or requirements; proper, or right: just proportions.
7.(especially in biblical use) righteous.
8.actual, real, or genuine.
In the context of the letter, treating members in an unjust manner might mean treating them in a biased manner or not treating them equitably and in an even‑handed manner or it might mean treating them unlawfully, not in accordance with justice. The imputation does not sufficiently tell the defendants the case they have to meet. It is likely to cause confusion at trial. The imputation should be struck out.
Imputation 8.18 does not suffer from the same vice. Deplorable is a simple word. There is no ambiguity in attributing to a person that he treats people in a deplorable manner. As a matter of practical justice, the defendants know the case they have to meet.
Imputation 9.1
Paragraph 9.1 pleads a true innuendo. The imputation is:
The plaintiff fails to comply with the fundamental tenets of the religion of which he is a devotee.
The defendants say that the plea falls short of setting out the final distillation of the alleged defamatory meaning, it is vague and embarrassing. Further, the defendants say that a mere failure, without more, to comply with the fundamental tenets of a religion, of which a person is a devotee, is not capable of conveying a defamatory meaning.
The imputation is sufficiently precise. Particulars B(iv) and B(vii) subjoined to [9] of the amended statement of claim identify fundamental tenets of Sikhism. The letter alleges conduct by the plaintiff that is contrary to those fundamental tenets.
The plaintiff says that the sting of the imputation is not the charge of engaging in the conduct, it is that the plaintiff holds himself out as a devout follower of a religion but does not adhere to its fundamental tenets. The imputation is capable of being defamatory. It amounts to a charge of a form of hypocrisy. The imputation is that the plaintiff professes or espouses a philosophy or beliefs without adhering in any meaningful way to the philosophy or beliefs. Attributing such a thing to the plaintiff tends to lower him in the estimation of others.
Imputation 9.2
The imputation is:
The plaintiff has so conducted himself as to warrant excommunication from the religion of which he is a devotee.
The defendants say that the pleaded imputation is vague and embarrassing; it covers a wide gradation of activities. An imputation that the plaintiff has so conducted himself as to warrant excommunication does not adequately identify the acts or conditions asserted of, or attributed to, the plaintiff or with which he is charged. Further, there is an element of repetition in the imputations pleaded in imputations 9.1 and 9.2.
The plaintiff refers to particular B(viii)(b) subjoined to [9] of the amended statement of claim which says:
The fundamental tenets of Sikhism include that ... if a person does not accept and perform the Tankah imposed on them, the person is liable to excommunication from the congregation.
In the course of argument counsel for the defendants, Mr Goldblatt, said that excommunication from a particular congregation is different from excommunication from a faith or religion. In response counsel for the plaintiff, Mr Chenu, moved to amend the imputation by deleting the words 'from the congregation'. With those words deleted, the imputation is sufficiently precise. Excommunication is the action of excommunicating or cutting off from fellowship. In the context of the letter it is the action of excluding an offending member from the religious community. The particulars to the imputation identify the conduct attributed to the plaintiff in the letter which under the Sikh religion make a person liable to excommunication. The imputation will not be struck out.
Imputation 9.3
The imputation is:
The plaintiff failed to keep a solemn covenant made with the God to whom he prays.
The defendants say the plea falls short of setting out the final distillation of the alleged defamatory meaning, is vague and embarrassing. The defendants say that the notion of a person making a personal solemn covenant with a 'person' with an abstract, spiritual existence is unlikely and confusing and in any event the failure to identify the 'solemn covenant' which was not kept leaves the defendants in doubt as to the nature and severity of the acts or conditions asserted of, or attributed to, the plaintiff or with which he is charged.
The defendants further say there is an element of repetition between this imputation and those pleaded in [9.1] and [9.2]; it is unclear what the distinction is, in relation to the three imputations, between the conduct constituting the failure to comply with the fundamental tenets of the religion, the conduct constituting the failure to keep a solemn covenant with God and the conduct which would warrant excommunication. The defendants ask: does the same conduct underpin all three imputations?
The plaintiff says that people regularly swear to their God, for example, witnesses who give evidence in court. To impute that a person acted contrary to how he swore to his God he would act, or that a person acted in a manner contrary to the solemn covenant he made with his God, is capable of being defamatory. The plaintiff says that particular B(vi) identifies that Ardas is a common form Tankah and particular B(vii) provides that:
A Sikh may perform ardas as a promise to carry out or perform a particular act or thing, and the ardas then constitutes a solemn covenant with god to carry out or perform the promise.
The nature of the act attributed to the plaintiff is identified as a failure to perform what is promised as part of the Ardas, or failure to perform the acts for which the Ardas was given. The imputation when read with the particulars in the context of the letter is sufficiently precise. The imputation is not likely to cause confusion. The defendants know the case they have to meet.
The plaintiff says there is no element of repetition in imputations 9.1 ‑ 9.3. Imputation 9.1 is directed to the conduct attributed to the plaintiff that would be contrary to the fundamental tenets of the Sikh faith of which there are various assertions within the letter that would amount to such conduct. Imputation 9.2 is directed to specific alleged failures by the plaintiff to perform his Tankah, warranting excommunication. Imputation 9.3 is that the plaintiff broke a solemn covenant with his God. Whether there is overlap in the alleged conduct giving rise to the separate imputations is not to the point. Each imputation pleads a distinct meaning arising from the words used in the letter as understood by members of the Sikh faith.
I accept the plaintiff's submission. The imputations are sufficiently distinct.
Conclusion
Paragraphs 8.1(b), 8.8, 8.9, 8.10, 8.11 and 8.17 will be struck out. The plaintiff will have leave to re‑plead. The plaintiff should amend his statement of claim to delete the words 'from the congregation' in particular B(viii)(b) subjoined to [9] of the amended statement of claim.
Costs will be in the cause. The defendants have had a measure of success in that five pleaded imputations have been struck out. However, the plaintiff conceded [8.1(b)] at the commencement of the hearing and three of the imputations ‑ 8.9, 8.10 and 8.11 - are struck out because they are repetitious and I have struck all of them out and given the plaintiff leave to re‑plead rather than requiring the plaintiff to elect on which he wishes to proceed to trial. Further, the defendants failed in their application to strike out 11 further paragraphs of the amended statement of claim and failed to strike out [8] and [9] of the amended statement of claim on the ground that the plaintiff had refused or failed to provide particulars identifying the specific passages or sentences of the letter said to convey each imputation.
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