Sugiarso v Pang
[2002] WASC 10
SUGIARSO & ORS -v- PANG & ANOR [2002] WASC 10
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 10 | |
| Case No: | CIV:2058/2001 | 19 DECEMBER 2001 | |
| Coram: | HASLUCK J | 1/02/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | HOWARD SUGIARSO MIMI LUAN MOY WONG GOLDEN LAND AUSTRALIA PROPERTY PTY LTD (ACN 075 834 981) VICTORY LAND AUSTRALIA PTY LTD (ACN 279 292 694) HERMAN PANGERAN PANG EDY WIJONO |
Catchwords: | Practice and procedure Pleadings Defamation action Application to strike out pleaded imputations and claim for exemplary damages Turns on own facts |
Legislation: | Fair Trading Act 1987 (WA), s 79 Supreme Court Rules, O 20 r 13A, r 19 |
Case References: | Birmingham v WA Newspapers [1999] WASC 19 Bruce v Odhams Press [1936] 1 KB 697 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 David Syme & Co v Canavan (1918) 25 CLR 234 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Jones v E Hulton & Co [1909] 2 KB 444 Jones v Skelton (1963) 1 WLR 1362 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 53 ALJR 243; (1979) 141 CLR 632 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Smith v Littlemore (1996) 15 WAR 289 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Taylor v Jecks (1993) 10 WAR 309 Uren v John Fairfax & Sons (1966) 117 CLR 118 Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MIMI LUAN MOY WONG
Second Plaintiff
GOLDEN LAND AUSTRALIA PROPERTY PTY LTD (ACN 075 834 981)
Third Plaintiff
VICTORY LAND AUSTRALIA PTY LTD (ACN 279 292 694)
Fourth Plaintiff
AND
HERMAN PANGERAN PANG
First Defendant
EDY WIJONO
Second Defendant
(Page 2)
Catchwords:
Practice and procedure - Pleadings - Defamation action - Application to strike out pleaded imputations and claim for exemplary damages - Turns on own facts
Legislation:
Fair Trading Act 1987 (WA), s 79
Supreme Court Rules, O 20 r 13A, r 19
Result:
Application allowed
Category: B
Representation:
Counsel:
First Plaintiff : Mr R K F Davis
Second Plaintiff : Mr R K F Davis
Third Plaintiff : Mr R K F Davis
Fourth Plaintiff : Mr R K F Davis
First Defendant : Mr A S Stavrianou
Second Defendant : Mr R W Richardson
Solicitors:
First Plaintiff : Friedman Lurie Singh
Second Plaintiff : Friedman Lurie Singh
Third Plaintiff : Friedman Lurie Singh
Fourth Plaintiff : Friedman Lurie Singh
First Defendant : Philip Lafferty
Second Defendant : Stephen Browne
(Page 3)
Case(s) referred to in judgment(s):
Birmingham v WA Newspapers [1999] WASC 19
Bruce v Odhams Press [1936] 1 KB 697
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
David Syme & Co v Canavan (1918) 25 CLR 234
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jones v E Hulton & Co [1909] 2 KB 444
Jones v Skelton (1963) 1 WLR 1362
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; (1979) 53 ALJR 243
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith v Littlemore (1996) 15 WAR 289
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Uren v John Fairfax & Sons (1966) 117 CLR 118
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71
Case(s) also cited:
Nil
(Page 4)
1 HASLUCK J: The plaintiffs have brought a claim in defamation against the first and second defendants. The claim arises out of words allegedly spoken by the defendants concerning the manner in which the plaintiffs conducted business. The defendants have now applied to strike out certain portions of the statement of claim filed on behalf of the plaintiffs dated 3 September 2001.
2 It is pleaded in par 1 of the statement of claim that the first and second plaintiffs were husband and wife. They are said to be property developers and investors who carry on business through the medium of the third and fourth plaintiffs, being companies of which they are directors and shareholders.
3 The statement of claim contains references to the Indonesian and English version of the words complained of. For ease of reference, in summarising the nature of the claim being advanced, I will refer to the English language version only and, where necessary, refer to the combined effect of the relevant passages in the statement of claim. The plaintiffs assert in pars 3 and 4 of the claim that "on diverse occasions" between April 1999 and 29 May 2001, the second defendant published certain words to persons described as Inggawati and Tedy of and concerning the first and second plaintiffs to the effect that they should be careful when doing "business with Mimi". I will call these the pre-29 May words.
4 The plaintiffs alleged in pars 5 and 6 that on or between 29 and 31 May 2001 at the home of Inggawati the second defendant published certain words to Inggawati and Tedy of and concerning the first and second plaintiffs being, in essence, that a person doing business with Mimi might be cheated. I will call these the pre-31 May words.
5 In par 7, the plaintiffs set out various imputations which are said to be referable to the words complained of in their natural and ordinary meaning. For example, the imputation pleaded in par 7.1 is that Inggawati and Tedy should and had reason to be careful in their business dealings with the first and second plaintiffs lest they be cheated.
6 One finds in par 8 of the claim, a plea that the words were defamatory by way of innuendo, including reference to certain particulars ostensibly of the kind required by O 20 r 13A of the Supreme Court Rules where a plea of innuendo is being advanced.
7 In pars 9 and 10, the plaintiff alleges that on 1 June 2001 at St Thomas More Catholic Church, Bateman, the first defendant published
(Page 5)
- certain words to Inggawati and Tedy of and concerning the first and second plaintiffs to the effect that Mimi had sold one house three times. I will call these the 1 June words.
8 Paragraphs 11 and 12 contain respectively pleaded imputations as to what the 1 June words meant in their natural and ordinary meaning (par 11) and by way of innuendo (par 12). For example, the pleaded imputation in par 11.1 is that the second plaintiff had cheated three people by selling the same house three times. The imputation pleaded in par 12.1 is that the plaintiffs had cheated three people by selling the same house three times.
9 The plaintiffs allege in par 13 that in or about June 2000 and between April and June 2001 the first defendant published to Joseph Parasuraman certain words of and concerning the second plaintiff, being, in essence, that he should be careful; he should not trust Mimi and Howard; they cheat.
10 Paragraph 14 contains pleaded imputations referable to the words in their natural and ordinary meaning. Paragraph 15 contains pleaded imputations referable to an innuendo plea. I will call these the June 2000 words.
11 The plaintiffs allege in par 16 that the various words complained of were calculated to and did disparage the plaintiffs in their business as property developers and investors.
12 In the following paragraphs, facts and matters are pleaded referable to the plaintiffs' claim for damages, including in par 18 a claim for exemplary damages.
13 The statement of claim also contains a plea that the words spoken by the first and second defendants were in the course of trade or commerce and had the effect of inducing Inggawati and Tedy to terminate or otherwise abandon business contracts which they had with the plaintiffs. The plaintiffs thus advance a claim for damages pursuant to s 79 of the Fair Trading Act 1987 (WA).
14 Before turning to the matters in issue raised by the applications to strike out, it will be useful to look briefly at some relevant principles of law bearing upon an application of this kind.
15 Order 20 r 19 of the Rules of the Supreme Court provides that the Court may strike out any pleading on the ground that it discloses no
(Page 6)
- reasonable cause of action or defence, as the case may be, or may prejudice, embarrass or delay the fair trial of the action. No evidence shall be admissible on such an application. The convention is that the Court will not go outside the pleadings and will assume that evidence can be adduced to substantiate the allegations in the relevant pleading.
16 It remains a rule of practice that the plaintiff must set out by way of a pleaded imputation the meaning which he or she alleges ordinary readers would infer from the words complained of unless the defamatory meaning is so clear that distillation is obviously unnecessary: Taylor v Jecks (1993) 10 WAR 309.
17 An imputation must express the precise act or condition attributed to the plaintiff and should represent the final distillation of the alleged defamatory meaning. Each imputation must reflect a discrete assertion, with the result that it is embarrassing to plead the same meaning several times: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 15.
18 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447.
19 In deciding whether or not the words are capable of conveying an allegedly defamatory meaning, the Court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. The Court will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unduly suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction: Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1.
20 What the ordinary man, not avid for scandal would read in the words must be a matter of impression. The impression will inevitably include a certain amount of loose thinking: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; (1979) 53 ALJR 243 at 246.
21 The test of whether the words complained of are capable of conveying an allegedly defamatory meaning is whether, under the circumstances in which the words were published, people to whom the publication was made would be likely to understand them in a defamatory sense: Jones v Skelton (1963) 1 WLR 1362.
(Page 7)
22 It follows from a review of the decided cases to this point that the pleader must exercise care in ensuring that the imputation crafted from the words complained of truly reflects the meaning of the words and is one which is capable of adversely affecting the plaintiff in the estimation of right-thinking members of society.
23 Thus, the first question to be addressed on a striking-out application will often be whether the pleaded imputations can be said to arise from the words complained of.
24 If so, the second question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff. Whether the words complained of are capable of conveying an allegedly defamatory meaning contended for by the plaintiff is a question of law to be decided by the Court.
25 A party is entitled to have the imputation it contends for left to the trier of fact for the ultimate decision: Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341. However, imputations will be struck out at this stage of the proceedings if they are untenable or manifestly groundless: Smith v Littlemore (1996) 15 WAR 289; Birmingham v WA Newspapers [1999] WASC 19.
26 In every case, it is necessary for the plaintiff to allege and establish that he was identified by the words. The intention and knowledge of the defendant in publishing the words are irrelevant. It is not essential that the plaintiff should be specifically named, provided there is some form of description whereby reasonable persons would reasonably believe that the words referred to the plaintiff: Jones v E Hulton & Co [1909] 2 KB 444 at 454; David Syme & Co v Canavan (1918) 25 CLR 234 at 238.
27 Where it is not absolutely clear on the face of the words that they refer to the plaintiff, or where he is not mentioned at all, the plaintiff should make clear in his pleading the basis on which he claims to have been identified. He must set out the connecting facts which establish the link between himself and the words used and he should make plain his case as to the existence of a person or persons who in fact linked him with the words by reason of their knowledge of those connecting facts.
28 These matters are material facts which must be pleaded. If the plaintiff does not plead such facts sufficiently, his claim will be struck out: Bruce v Odhams Press [1936] 1 KB 697 at 713; Gatley on Libel and Slander (9th ed) par 26.25.
(Page 8)
29 A class of people cannot be defamed as a class. Reference to a group or class of which the plaintiff is a member may, however, be defamatory of the plaintiff if the material may reasonably be understood to refer to the plaintiff.
30 The natural and ordinary meaning of the words complained of is found by having regard to how an ordinary person would interpret the material unaided by special knowledge. In the case of a true or legal innuendo, it is necessary to go outside the statement to find some extrinsic fact or circumstance which gives the statement a defamatory sting.
31 Consistently with common law principles, O 20 r 13A of the Supreme Court Rules requires that where a true or legal innuendo is pleaded the extrinsic facts and circumstances which are said to give rise to the alleged defamatory meaning must be pleaded.
32 The distinction between libel and slander is relevant where material has been published in South Australia, Victoria or Western Australia, but is no longer relevant in the other States: The Laws of Australia, vol 6 par 11.
33 In the case of a libel, that is to say, the publication of words in a written or permanent form, damages arising from the publication is presumed. In the case of a slander, however, the plaintiff has to prove either that the words are actionable per se at common law or that he or she has suffered special damage.
34 Words will be actionable per se where the words complained of impute the commission of a crime, where there is an imputation of contagious disease, adultery or unchastity or where the words disparage a person in his office, trade, calling, business or profession.
35 The special damage which must be proved in all other cases of slander is some form of pecuniary loss or loss capable of assessment in money terms. It includes the loss or refusal of employment if sufficiently connected with the words spoken. Special damage may also be established by proof of general loss of business, at least if that is the likely consequence of the slander involved: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 558.
36 If the statement of claim is found to be insufficient upon the hearing of an application to strike out, the plaintiff can generally obtain leave to amend unless it is clear that an amendment cannot overcome the objections: Gatley (supra) at par 26.43.
(Page 9)
37 Against this background, let me now return to the circumstances of the present case.
38 I must begin by noting that shortly before the hearing of the applications to strike out, counsel for the plaintiffs delivered to the court with his outline of submissions a minute of proposed amended statement of claim containing various proposed amendments, particularly in regard to the innuendo pleas in pars 8, 12 and 15. This minute did not give rise to an application for leave to amend in those terms and, therefore, had no status before the Court. I gave no weight to the document, other than as a memorandum reflecting certain concessions made by counsel for the plaintiffs concerning the form of his original pleading. It should not be thought that, by failing to make any further comment about the document in question, I am in any way purporting to approve a revised pleading in that form.
39 As to the plea in pars 3 and 4 of the claim concerning the pre-29 May words, the second defendant submitted that it was embarrassing to plead that there were publications on "diverse" occasions between particular dates. It is embarrassing also not to state the time and place that the alleged conversations took place.
40 I consider that the plea in its present form concerning the pre-29 May words is embarrassing and must be struck out. It is clearly embarrassing for a defendant to be required to meet a case where the specific publications are not pleaded, in that each publication constitutes a separate cause of action. The plaintiffs must provide greater particularity even if only one such conversation can be singled out as an occasion when the words complained of were spoken.
41 This leads to another problem with the pleading. I have already noted that in par 7 the plaintiffs purport to set out pleaded imputations which are said to be referable simultaneously to the pre-29 May and pre-31 May words. To my mind, it is not entirely clear from a pleading in this form as to whether it is being asserted the publication of the pre-29 May and pre-31 May words gives rise to two discrete causes of action or whether it is being asserted that the words in their entirety may be considered together, with a view to making out one cause of action.
42 The structure of the pleading certainly suggests that two causes of action are being asserted in that the pre-29 May words are dealt with in pars 3 and 4, while the pre-31 May words are dealt with in pars 5 and 6. On the other hand, the fact that the imputations pleaded in par 7 are
(Page 10)
- ostensibly derived from both sets of words, adds an element of confusion. This is compounded when one notices that most of the pleaded imputations in par 7 refer to cheating, this being a matter mentioned expressly in the pre-31 May words, but not mentioned at all in the pre-29 May words. I consider that this aspect of pars 3 to 7 of the claim is embarrassing also and should be addressed in the event of the claim being repleaded. The plea in its present form will be struck out with leave to replead.
43 Counsel for the second defendant drew attention to the reference in par 3 of the claim to the pre-29 May words being published of and concerning the first and second plaintiffs, notwithstanding that the said words referred only to Mimi, that is to say, the second plaintiff. I have already noted, having regard to the rule of pleading mentioned in Gatley (supra) at par 26.25, that a plaintiff is obliged to set out the connecting facts which establish the link between himself and the words used. If the plaintiff does not plead such facts sufficiently, his claim will be struck out. Accordingly, in the present case, in the absence of any explicit reference to the first plaintiff, I consider that a reasonable cause of action has not been disclosed as to the claim of the first plaintiff because the facts and matters required to establish a connecting link between the words complained of and the first plaintiff have not been set out in the pleading.
44 It is apparent from pars 5 and 6 of the claim, that the pre-31 May words do not make any explicit disparaging reference to the first plaintiff. It follows that this paragraph must be struck out also, for the reason just given. Counsel for the plaintiffs contended that the reference to the plaintiffs being husband and wife in par 1 was sufficient to establish a connecting link. I cannot accede to this suggestion. It is apparent from the rule in Gatley (supra) that where identification is in issue, facts and matters must be pleaded specifically in relation to the words complained of.
45 It is true that in par 6 concerning the pre-31 May words there is a passing reference to the first plaintiff in that the listener is told not to tell Mimi and her husband about a proposed meeting. However, that passing reference does not bear directly upon the disparaging quality of the words and, in any event, a specific plea is required in order to establish a connecting link between the persons being spoken of and the plaintiff.
46 Counsel for the second defendant submitted in regard to par 7 of the claim, in which the pleaded imputations are set out, that the first plaintiff
(Page 11)
- could not be the subject of the imputations because, for the reasons I have previously given, he is not sufficiently identified in the words from which the imputations are drawn. Further, and in any event, counsel for the second defendant submitted, it is embarrassing to plead imputations against both parties. As each imputation constitutes a separate cause of action, it must be pleaded separately and be referable to each of the plaintiffs. This can be tested by considering a possible plea of justification. The defendants might wish to plead justification in respect of an unfavourable reference to one plaintiff, but not necessarily to the other plaintiff.
47 I am persuaded by this submission and consider that par 7 should be struck out, having regard to this ground of objection.
48 Counsel for the second defendant submitted further that the imputations reflected in par 7, and especially pars 7.1 to 7.4, were repetitious in that the central allegation of cheating was repeated in various forms. I have already indicated in my review of the decided cases that each imputation must reflect a discrete assertion the distillation of a particular meaning to be found in the words. Accordingly, I consider that this ground of objection must be upheld also. It is apparent that there will have to be a thorough reconsideration of the statement of claim and a general repleading. Hence, I do not see a need for me to be more specific as to how the imputations should be presented.
49 I note in passing that at the hearing before me, counsel for the second defendant raised an issue not mentioned in his written submissions as to whether an imputation of cheating could be discovered in the words complained of. This takes me back to earlier discussion concerning the fundamental question of whether the plaintiffs purport to be advancing discrete causes of action based upon the pre-29 May and the pre-31 May words. Again, being conscious that a repleading is bound to occur, it does not appear to be necessary to resolve the question of whether the words complained of contain an allegation of cheating, save to note that the word "cheated" forms part of the pre-31 May words. This suggests that, subject to further pleading to cover the identification issue, the plaintiffs will have an arguable case or an imputation concerning cheating as a matter arguably reflected in the pre-31 May words.
50 Counsel for the second defendant objected to par 8 of the statement of claim in that, as a constituent of the true innuendo plea, it purports to plead imputations against each of the plaintiffs, even though the first, third and fourth plaintiffs are not explicitly named or identified in the words
(Page 12)
- complained of. Further, the particulars presented pursuant to O 20 r 13A do not really conform to the requirements of that rule. It emerges from earlier discussion that the purpose of pleading extrinsic facts in support of a true or legal innuendo is to set out circumstances which are known to a particular audience and give the statement a defamatory sting.
51 I am persuaded by these submissions, but for present purposes do not feel compelled to give more extensive reasons, bearing in mind that counsel for the plaintiffs, by his minute of proposed amended statement of claim, conceded that par 8 must be extensively repleaded. Accordingly, for the moment, it is sufficient for me simply to strike out par 8 on the ground that it fails to disclose a reasonable cause of action and is embarrassing, but with leave to replead.
52 This brings me to those portions of the claim concerning the first defendant. Counsel for the first defendant referred to the 1 June words pleaded in pars 9 and 10 in which reference is made to Mimi, but not to the first plaintiff. For the reasons previously given concerning identification, I consider that in the absence of a plea linking the first plaintiff to the words used, pars 9 to 12 of the claim must be struck out as failing to disclose a reasonable cause of action.
53 The plaintiffs recognise by their minute of proposed amendment that the particulars provided in support of the innuendo plea in par 12 are insufficient. It follows that for this reason also par 12 must be struck out. Paragraph 13 deals with the June words. Those words include the passage "Don't trust Mimi and Howard". This suggests that, upon repleading, it will be open to the plaintiffs to set out facts and matters establishing a sufficient connection between the words used and the first plaintiff. However, for the reasons previously given, this paragraph must be struck out as failing to disclose a reasonable cause of action.
54 I pause to observe that par 8.1 concerning the pre-29 May and pre-31 May words and par 14.1 concerning the June words both contain pleas that the plaintiffs had been guilty of "dishonest and dishonourable conduct". Counsel for the plaintiffs conceded at the hearing that there were two discrete imputations bound up in such a plea and it was necessary that this aspect of the pleading be reformulated with a view to avoiding embarrassment.
55 The minute of proposed amendment contained a concession that par 15 in its present form must be struck out as failing to disclose a reasonable cause of action in that it is not apparent which persons had the
(Page 13)
- knowledge which gave the words complained of a defamatory sting and connected the same to each of the plaintiffs. Accordingly, this paragraph must be struck out.
56 Counsel for the second defendant raised an objection at the hearing to par 16 in which reference is made to the words complained of being calculated to and did disparage the plaintiffs in their business as property developers and investors. Counsel submitted that a plea in this form was objectionable, as it seemed to suggest that the plaintiffs could recover as a group.
57 I have already indicated in my review of the decided cases that it is necessary to cast the pleading in a form which makes it clear that relief is sought by each plaintiff in respect of an act of defamation which bears upon his or her particular reputation. Accordingly, I consider that this paragraph should be struck out as embarrassing, but with leave to replead.
58 Objection was taken by counsel for the second defendant to par 17, and especially to par 17.1, in which it is pleaded that Inggawati and Tedy have terminated or otherwise abandoned business contracts. This plea is said to be embarrassing because the contracts are not identified by date, nor are the parties to the contract identified by name. Further, in regard to par 17.2, the date of cancellation is not indicated. As to par 17.3, it is not clear which party has experienced the loss of business profits. To my mind, as submitted by counsel for the plaintiffs, I consider that any ambiguity concerning such matters can be cured by a request for further and better particulars of the claim. Accordingly, I am not prepared to strike out this paragraph.
59 It is pleaded in par 18 of the claim that the second defendant published the words spoken in order to profit himself and that accordingly the plaintiffs claim exemplary damages. This plea is put in a very general form and it will therefore be useful to look briefly at the rules concerning categories of damages.
60 Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act is aggravated by the manner in which the act was done, whereas exemplary damages are intended to punish the defendant and presumably to serve one or more of the objects of punishment, namely, moral retribution or deterrence: Uren v John Fairfax & Sons (1966) 117 CLR 118.
61 Exemplary damages will be awarded in circumstances where there is a conscious wrongdoing in contumelious disregard of another's rights or
(Page 14)
- in circumstances in which it is open to the Court to find that the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story to attract custom: Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71.
62 It is quite apparent that insufficient particulars are provided in the present pleading to justify a claim for exemplary damages. I note also that counsel for the plaintiffs was prepared to concede this point at the hearing. Accordingly, par 18 of the claim will be struck out as failing to disclose a reasonable cause of action.
63 Counsel for the second defendant objected to par 20 of the claim, where it is pleaded that the first and second defendants well knew that the plaintiffs had a business relationship with Inggawati and Tedy inter alia in the contract. This objection was conceded and therefore par 20 also will be struck out.
64 Counsel for the second defendant objected to par 21. He submitted that it is embarrassing to plead intention in relation to the first and second defendants and that these conversations were separate. The plea is embarrassing because it is uncertain whether the allegation is that it was a joint or several intention. Furthermore, the parties to the contracts are not identified, dates are not identified and the date of withdrawal or termination is not identified.
65 I will uphold this objection upon the grounds just given.
66 Counsel for both defendants submitted that, in regard to all facts pleaded in respect of the claim for misleading and deceptive conduct, the words published did not identify the first, third or fourth plaintiffs and they therefore could not be considered to have a cause of action.
67 I consider that the plea in its present form is embarrassing and must be struck out for that reason.
68 In summary, then, when the issues raised by the applications for striking-out are looked at in overview, it becomes apparent that leave must be allowed to the plaintiffs to undertake a comprehensive repleading of the statement of claim so that various issues raised at the hearing before me can be addressed. For the reasons previously given, the claim in its present form does not disclose a reasonable cause of action and is embarrassing in various respects. More particularly, the following paragraphs will be struck out, that is to say, pars 3 to 8, pars 9 to 15 (save for par 14), par 16, par 18, par 20, par 21, and pars 27 to 33. The
(Page 15)
- plaintiffs will be allowed general leave to replead. I will hear from the parties as to whether any further orders or directions are required.
2