Translane Holdings Pty Ltd v Sims
[2000] WASC 243
•6 OCTOBER 2000
TRANSLANE HOLDINGS PTY LTD & ORS -v- SIMS [2000] WASC 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 243 | |
| Case No: | CIV:2369/1999 | 13 SEPTEMBER 2000 | |
| Coram: | HASLUCK J | 6/10/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | TRANSLANE HOLDINGS PTY LTD LESLIE MYERS CHERYL MARIE MYERS PAUL JOSEPH SIMS |
Catchwords: | Defamation Application to strike out statement of claim Turns on own facts Application dismissed |
Legislation: | Supreme Court Rules, O 20, r 19 |
Case References: | General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Singleton v Hudson (1998) 20 WAR 191 Smith v Littlemore (1996) 15 WAR 289 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- LESLIE MYERS
CHERYL MARIE MYERS
Plaintiffs
AND
PAUL JOSEPH SIMS
Defendant
Catchwords:
Defamation - Application to strike out statement of claim - Turns on own facts - Application dismissed
Legislation:
Supreme Court Rules, O 20, r 19
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiffs : Mr H J Paiker
Defendant : In person
Solicitors:
Plaintiffs : Paiker & Overmeire
Defendant : In person
Case(s) referred to in judgment(s):
General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Singleton v Hudson (1998) 20 WAR 191
Smith v Littlemore (1996) 15 WAR 289
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Case(s) also cited:
Nil
(Page 3)
1 HASLUCK J: This is an application by the defendant, Paul Joseph Sims, in a defamation action to strike out the plaintiffs' statement of claim pursuant to O 20 r 19 of the Supreme Court Rules. The plaintiffs were represented at the hearing by counsel. The defendant, Mr Sims, appeared in person.
2 The grounds advanced in support of the defendant's application were set out at some length in the chamber summons. Accordingly, in addition to the matters raised in argument at the hearing, the chamber summons itself becomes a useful point of reference in defining the matters to be decided and in understanding the arguments advanced by the defendant in support of his application.
3 Order 20 r 19 provides that the court may, at any stage of the proceedings, order to be struck out any pleading on the ground that it discloses no reasonable cause of action or it is scandalous, frivolous or vexatious, or it may prejudice, embarrass or delay the fair trial of the action or it is otherwise an abuse of the process of the court.
4 The writ of summons in this matter was issued on 9 December 1999. The Registrar subsequently directed that the plaintiffs file and serve a statement of claim by 17 February 2000. A statement of claim was filed on 16 February 2000, but two days later the defendant issued a notice of non-compliance.
5 The defendant raised this matter in par 1 of his chamber summons concerning the present application to strike out and referred to the same issue during the course of the hearing. As to this part of his application, I have to say that I am not prepared to strike out the statement of claim on that ground, bearing in mind that the statement of claim was filed by 16 February 2000 and more than six months have now expired since the alleged non-compliance occurred. In the meantime, on 2 March 2000, the defendant filed and served his defence and counterclaim.
6 Before turning to the other grounds relied upon by the defendant in his application to strike out, it will be useful to look briefly at the facts and matters referred to in the statement of claim. I take account of the fact that the defendant admits par 1, par 2 and par 3 of the statement of claim, subject to certain matters raised by way of qualification to the matters admitted in par 3. The defendant otherwise denies the matters alleged in the statement of claim and denies that he is liable to the plaintiffs in defamation as alleged.
(Page 4)
7 The first plaintiff, Translane Holdings Pty Ltd, is a corporation. The second and third named plaintiffs have at all material times been directors of the company. The plaintiffs allege in par 3 that in February 1998 the plaintiffs entered into an agreement with the defendant for the provision by the defendant of certain architectural services relating to a development at Lot 524 Reid Promenade, Joondalup ("the development"). I have already noted that these allegations are substantially admitted with reference being made by the defendant to documentation relevant to the agreement.
8 The plaintiffs say that on or about 10 September 1998, the services of the defendant were terminated. They then go on to say that in or about November/December 1998 a Mr M D Thorogood entered into a written offer to purchase a unit in the development ("the Thorogood offer").
9 The plaintiffs plead in par 6 that in or about January 1999 the defendant informed Mr Thorogood that he was no longer the architect involved in the development and allegedly uttered certain words which were said to be defamatory of the plaintiffs. In par 9, the plaintiffs set out various imputations which are said to be inherent in the words complained of in their natural and ordinary meaning, including that the plaintiffs had acted dishonestly and were prone to criminal behaviour and lying.
10 The plaintiffs then go on to allege in the statement of claim that the words complained of were published recklessly and malevolently with a view to persuading Mr Thorogood from not proceeding with the purchase of the unit. By reason of the facts and matters pleaded in the statement of claim, the plaintiffs claim damages, aggravated damages and exemplary damages and such further and alternative relief as the court deems fit. I have already noted that the central constituents of the plaintiffs' claim are denied by the defendant.
11 Before turning to the additional grounds relied upon by the defendant in seeking to strike out the statement of claim, or, alternatively, certain paragraphs of the statement of claim, it is necessary to review the principles bearing upon the application of O 20 r 19 to an application of this kind.
12 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of society. It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law calling for a decision by the court. The test is whether reasonable men to whom the
(Page 5)
- publication was made would be likely to understand it in a defamatory sense. Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440.
13 An imputation must represent the final distillation of the alleged defamatory meaning. It must be pleaded clearly, unambiguously and without irrelevant or unnecessary matter. As a general rule, a party is entitled to have the imputations for which it contends left to the trier of fact for the ultimate decision. However, pleadings asserting imputations will be struck out on an interlocutory application where the imputations are clearly untenable or manifestly groundless. Smith v Littlemore (1996) 15 WAR 289; Singleton v Hudson (1998) 20 WAR 191.
14 The jurisdiction to strike out on the ground that no reasonable cause of action is disclosed must be sparingly employed. It follows from earlier discussion that it will be exercised in circumstances where the court can say that the statement of claim, even if proved, cannot succeed. The corollary is that upon an application to strike out, the facts alleged are accepted as true. General Steel Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.
15 The defendant sought to have the plaintiffs' action dismissed on the grounds that no reasonable cause of action existed. He did not place any particular emphasis upon the concept that in proceedings for defamation a statement of claim will be struck out if the words complained of are held to be not capable of conveying a defamatory meaning. However, as that aspect of the matter was touched upon during the course of argument, for the sake of completeness, I must begin by applying the relevant principles to the circumstances of the present case.
16 The words complained of, as allegedly uttered by the defendant to Mr Thorogood, are set out in par 6 of the statement of claim. As pleaded, there is a suggestion inherent in the words that care should be exercised in doing business with Translane Holdings. Reference is made to the company being "a shonky lot" and "a pack of thieves" and the words otherwise arguably contain other aspersions.
17 In my view, the imputations distilled from the words complained of - such imputations being set out in par 9 of the claim - are arguably inherent in the words actually spoken and, to my mind, the imputations are capable of conveying a defamatory meaning in that reasonable men would be likely to understand them in a defamatory sense.
(Page 6)
18 It follows that I am not prepared to strike out the statement of claim upon this basis.
19 The matter principally relied upon by the defendant in support of his application to strike out was an alleged deficiency in regard to par 5 of the claim, that is to say, the paragraph in which the plaintiffs allege that a Mr Thorogood contracted to purchase a unit in the development. The argument advanced by the defendant was that discovery of documents has now taken place and no document fits the description of the written offer to purchase reflected in par 5 of the claim.
20 I digress briefly to note that at the time of hearing the defendant's application to strike out, I also heard the defendant's application for further and better discovery. Orders were made in regard to the latter application which may have the effect of curing any ambiguity as to what document is being referred to and as to whether the document in question is stamped, being one of the matters also raised by the defendant in his application to strike out. In the meantime, however, I must accept the pleading as it stands and in that regard it is immediately noticeable that what is being referred to is "a written offer to purchase" and, thus, it is not entirely clear that the document is a consummated agreement of a kind requiring stamping. Accordingly, I am not prepared to strike out par 5 on the ground that the document being referred to is not stamped.
21 It is also material to note that par 5 is simply setting the scene. In other words, matters are referred to which provide a context serving to explain the way in which the words complained of came to be uttered and providing also a foundation for the claims for damages that are set out later in the pleading. In other words, the claims for aggravated and exemplary damages are founded to some extent upon the notion that an attempt was made to prejudice the standing of the plaintiffs in the eyes of their customers, or prospective customers.
22 When the matter is looked at in this light, I do not consider that the statement of claim as a whole should be struck out as failing to disclose a reasonable cause of action. Paragraph 5 has a relevance to the claims for damages that are advanced later. It also provides a context within which the words complained of must be considered. The words complained of do not appear in that paragraph and, therefore, it cannot be said that the words complained of are incapable of conveying a defamatory meaning simply because of some perceived insufficiency in par 5. For the purpose of this application, I must accept that the plea in par 5 can be established.
(Page 7)
23 The defendant submits in the alternative that par 5 is embarrassing and likely to prejudice the trial of the action because it is not clear what document is being referred to. However, in my view, this is an aspect of the matter which can be cured by a properly framed request for further and better particulars of par 5. The identity of the document is a matter to be addressed in a request for particulars and in the application for further and better discovery that I mentioned a moment ago. Accordingly, I am not prepared to strike out par 5 upon the basis that it is embarrassing.
24 The defendant goes on to submit that par 5 to par 15 inclusive of the plaintiffs' statement of claim should be struck out upon the grounds that they disclose no reasonable cause of action and are embarrassing or otherwise likely to delay the fair trial of the action. This, in effect, was a challenge to the way in which the plaintiffs were said to be identified and as to the sufficiency of the imputation. In my view, in circumstances where the words complained of refer not only to the company, but also, as a matter of reasonable inference, to those associated with the company who are described as "a shonky lot" and "a pack of thieves", it seems to me that the plaintiffs can arguably say that they have been identified as directors or principals of the company under attack. I have already observed that, in my view, the imputations are sufficiently referable to the words spoken and are capable of conveying a defamatory meaning. It will be an issue at the trial as to whether they are in fact defamatory of the plaintiffs.
25 This part of the defendant's application also mounted a challenge to the adequacy of the facts and matters pleaded in support of the claim for aggravated and exemplary damages.
26 There is a functional distinction which is usually drawn between these two categories of damages. Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done, whereas damages of the latter kind 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 Ltd (1966) 117 CLR 118.
27 Damages will be aggravated by conduct which is unjustifiable, improper or lacking in bona fides. The usual formula, in the case of exemplary damages, is that damages of this kind will be awarded in circumstances in which there is a conscious wrongdoing in contumelious disregard of another's rights or in circumstances in which it is open to the
(Page 8)
- jury to find that the defendant recklessly and arrogantly attacked the plaintiffs' reputation.
28 In the circumstances of the present case, I am not prepared to hold that the statement of claim in regard to this aspect of the matter fails to disclose a reasonable cause of action, or is embarrassing, or is likely to delay the fair trial of the action. Various facts and matters are set out in pleading the context within which the words complained of were spoken to Mr Thorogood, who is portrayed as a customer, or potential customer, of the plaintiffs, and I, therefore, consider that there is some foundation for the claims being advanced against the defendant. Accordingly, I am not prepared to strike out the paragraphs in question upon the basis proposed.
29 I conclude by saying that the purpose of the pleadings is to define and narrow the issues to be resolved at trial and to provide each party with adequate notice of the issues to be addressed at trial. It follows from this summation, that my earlier observations should not, in any way, be construed as an indication of what findings will be made at trial. At this stage, it is only necessary to determine whether the allegations reflected in the statement of claim are clear and comprehensible and amount to an arguable case in law if the allegations were supported by sufficient evidence at trial. Because the defendant was unrepresented, I explained to him at the hearing that he will be afforded all the usual opportunities at the trial of the action, if the matters proceeds to that point, to cross-examine witnesses and to reveal any shortcomings which might be found to exist in documents relied upon by the plaintiffs.
30 It follows from my various observations that the application made by the defendant to strike out the statement of claim, or, alternatively, various portions of the statement of claim will be dismissed. The parties will be allowed liberty to apply as to the costs of the defendant's application.
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