Vitale v Bednall - [2000] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: VITALE & ORS -v- BEDNALL & ANOR [2000] WASC 207

CORAM: HASLUCK J

HEARD: 20 JULY 2000

DELIVERED : 24 AUGUST 2000

FILE NO/S: CIV 2248 of 1999

BETWEEN: JEROME GINO VITALE
MOLLY CLARA VITALE
First Plaintiffs
DAVID VINCENT VITALE by his next friend JEROME GINO VITALE
Second Plaintiff
AND
JOHN BEDNALL
First Defendant
WESLEY COLLEGE
Second Defendant

Catchwords:

Defamation - Pleadings - Innuendo as to member of small group - Whether necessary to plead the names of those with special knowledge - Material facts or particulars - Aggravated and exemplary damages - Contract - Implied terms - Damages in contract for mental stress - Trade practices - Meaning of undue harassment or coercion

Legislation:

Fair Trading Act 1987 (WA), s 23

Trade Practices Act (Cth) 1974, s 60

Result:

Various applications to strike out claim dismissed save for the applications directed to pars 8A, 15A, 22, 24(c) and 25 to 31 which were allowed

Representation:

Counsel:

First Plaintiffs               :     Mr J D MacLaurin
Second Plaintiff            :     Mr J D MacLaurin
First Defendant             :     Mr W S Martin QC
Second Defendant         :     Mr W S Martin QC

Solicitors:

First Plaintiffs               :     Bennett & Co
Second Plaintiff            :     Bennett & Co
First Defendant             :     Freehill Hollingdale & Page
Second Defendant         :     Freehill Hollingdale & Page

Case(s) referred to in judgment(s):

Australian Competition & Consumer Commission v McCaskey [2000] FCA 1037
Baltic Shipping Co v Dillon (1992) 176 CLR 344
Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Bjelke‑Petersen v Warburton (1987) 2 Qd R 465
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363
Campbell v Metway Leasing Ltd (1998) ATPR 41‑630
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 651
General Steel Industries v Commissioner for Railways (1964) 112 CLR 125
Gumina v Williams (No 1) (1990) 3 WAR 342
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jarvis v Swan Tours Ltd [1973] 1 All ER 71
Jones v Skelton [1963] 1 WLR 1362
Knupffer v London Express Newspaper Ltd [1944] AC 116
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Lewis v Daily Telegraph Ltd [1964] AC 234
McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997
Posgold (Big Bell) Pty Ltd & Ors v Placer (Western Australia) Pty Ltd & Ors [1999] WASCA 217
Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175
Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No 960340; 21 June 1996
Singleton v Hudson (1998) 20 WAR 191
Smith v Littlemore (1996) 15 WAR 289
Taylor v Jecks (1993) 10 WAR 309
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71

Case(s) also cited:

ABC v Comalco Ltd (1986) 12 FCR 510
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Berkoff v Burchill [1996] 4 All ER 1008
Campbell v Payton (1898) 17 NZLR 91
Chakravarti v Advertiser Newspapers Limited [1998] HCA 37
Clement v Chivis (1829) 9 B&C 172
David Syme & Co v Canavan (1918) 25 CLR 234
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Helsham v Blackwood & Anor (1851) 11 CB 111
Hobbs v London and South Western Railway Co (1875) LR 10 QB 111
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
Parker v Copeman, unreported; SCt of WA; Library No 6977; 16 December 1987
Pickering & Ors v Publishing and Broadcasting Pty Ltd & Anor, unreported; SCt of NSW; No 21293 of 1995; 21 June 1996
Pollack v Volpato [1973] 1 NSWLR 653
Riches v News Group Newspapers [1986] QB 256
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Sutcliffe v Pressdram [1991] 1 QB 153

HASLUCK J: This is an application to strike out various portions of a statement of claim reflecting a number of discrete causes of action. At the hearing of the application, counsel on both sides agreed that I should put the summons to one side and treat the defendants' written submissions as the essential point of reference in determining which paragraphs of the claim are under attack. I will proceed accordingly.
The first plaintiffs are the parents of the second plaintiff. In November 1999, the second plaintiff was a student enrolled in year 12 studies with the second defendant, Wesley College. The plaintiffs have brought a claim in defamation arising out of the publication of certain letters by the first defendant in his capacity as headmaster of the second defendant. The application to strike out in respect of this claim raises various issues, including the question of whether the words complained of are capable of conveying a meaning defamatory of the plaintiff, and whether the facts and matters pleaded in support of claims for aggravated and exemplary damages are sufficient.
The plaintiffs also seek to recover damages for breach of contract. Here, the application to strike out raises a number of issues including the question of whether the facts and matters relied on are sufficient to sustain a claim for damages. Finally, the plaintiffs seek relief pursuant to s 60 the Trade Practices Act 1974 on the grounds that the second plaintiff was subjected to undue harassment or coercion. The application to strike out is directed to various aspects of this plea.
Before turning to these issues, it will be useful to set out the background to the dispute by looking at the contents of the amended statement of claim. For the purposes of a striking‑out application, I must proceed upon the basis that the facts alleged are accepted as true.
The amended statement of claim reveals that the second defendant was engaged in the business of providing educational services for students between, inter alia, school years 1 to 7 and 8 to 12 and was a member of the Public Schools Association. The plaintiffs say that in or about 1993 the second defendant agreed to provide educational services to the second plaintiff, subject to payment of fees. They allege that this contract continued during 1999 while the second plaintiff was a student in year 12. They had an expectation that his schooling in that year would include preparation for his Tertiary Entrance Examinations ("TEE") to the intent that he would sit his TEE at the second defendant's premises at the end of that year.
The plaintiffs plead in par 5 that by a letter dated 4 November 1999 sent to parents of year 12 students the defendants "wrote and thereby published of and concerning the second plaintiff" certain words ("the first publication"). The contents of the letter are set out fully in the statement of claim. In summary, the headmaster complained about the behaviour "of groups of year 12 students in the last few days" arising out of valedictory activities. He went on to say that "behaviour has occurred which has brought public disgrace to the college through dangerous use of motor vehicles, vandalism, interference with property, and personal insult to others." He refers to the fact that the "vast majority of our year 12 group" are sensible and honourable young men and goes on to acquaint the parents of year 12 students with various remedial measures.
The plaintiffs plead in par 6 and par 7 that the letter complained of was understood to refer to the second plaintiff and meant and was understood to mean to the persons described in par 7 that the second plaintiff was a vandal (par 6.1); the second plaintiff used motor vehicles in a dangerous manner with reckless disregard for the safety of the road‑using public (par 6.2); and the second plaintiff had personally insulted members of the public (par 6.3).
In par 7 one finds the plea that these meanings were conveyed "to those parents, staff and students of the second defendant with knowledge of the fact that the second plaintiff was one of four students (alternatively a small number of students) who had been identified and disciplined by the defendants for their alleged misbehaviour during unofficial year 12 end‑of‑year celebrations." By reason of the matters pleaded in par 5, par 6 and par 7, the second plaintiff is said to have been defamed and has thereby suffered and will continue to suffer loss and damage.
Paragraph 8A of the statement of claim refers to a republication of the first letter. Paragraph 9 to par 11 are directed to pleas that the second plaintiff is entitled to aggravated and exemplary damages, having regard to the timing of the publication (being just prior to the commencement of the TEE and the formal closing of the school year) and a plea that the second plaintiff had not himself been personally involved in the objectionable conduct alleged against him.
Paragraph 12 of the statement of claim refers to a second letter written by the headmaster to parents of year 8 to 12 students in terms which are very similar to the terms of the first letter. On this occasion, the letter said that "behaviour occurred which has brought some public disgrace to the college through dangerous use of motor vehicles, vandalism, interference with property and personal insult to others." This letter also refers to the vast majority of year 12 students being sensible and honourable young men. The letter continues:
"It is out of respect for them that I have taken the very strongest action against the few of their number who have let us down so seriously. Four year 12 students have been advised that should they decide to sit any TEE subject, Wesley will not provide that facility and the student will need to make alternative arrangements through the Curriculum Council."
Paragraph 13 of the statement of claim reiterates the imputations contended for by the plaintiffs in par 6 (mentioned earlier), but adds to them two further imputations, namely, that the second plaintiff had conducted himself during unofficial year 12 end‑of‑year celebrations as to be unfit to remain a student at Wesley College (par 13.4); that the second plaintiff is so lacking in social values as to be unfit to remain a student at Wesley College (par 13.5). Paragraph 15 contains a description of those to whom the defamatory meaning is said to have been conveyed, which corresponds essentially with the description given earlier in par 7. Likewise, par 15A concerning republication conforms to the earlier par 8A. Paragraph 16 to par 18 contain facts and matters relied upon in support of claims for aggravated and exemplary damages.
The remainder of the statement of claim is directed to the alleged breach of contract and the cause of action allegedly arising under the Trade Practices Act. I will return to the details of those claims later.

Defamation - Relevant Principles

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 decision by the court. Birmingham v West Australian Newspapers Ltd [1999] WASC 19; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447. The test is whether reasonable men to whom the publication was made would be likely to understand it in a defamatory sense. It is not enough to say that the words might be understood by some person or another in a defamatory sense. Lewis v Daily Telegraph Ltd [1964] AC 234 at 259.
An imputation must represent the final distillation of the alleged defamatory meaning. It must be pleaded clearly, unambiguously and without irrelevant or unnecessary matter. Taylor v Jecks (1993) 10 WAR 309. 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. Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332. However, pleadings asserting imputations will be struck out on an interlocutory application where the imputations are clearly untenable or manifestly groundless. Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Smith v Littlemore (1996) 15 WAR 289; Singleton v Hudson (1998) 20 WAR 191.
The jurisdiction to strike out on the ground discloses no reasonable cause of action 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. General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 at 129. In other words, as I have already noted, upon an application to strike out, the facts alleged are accepted as true. In order to succeed, the applicant must then demonstrate that, even so, there is no basis for the legal conclusion contended for with the result that the pleaded case is unarguable: Seaman: Civil Procedure at par 20.19.6. Nonetheless, the court should endeavour to achieve substantial justice rather than procedural justice, and in cases where defective pleadings are struck out, leave to amend should be given if the pleadings can be improved and no injustice is done by the amendment: Gatley on Libel and Slander (9th ed) par 26.43.
The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense. Jones v Skelton [1963] 1 WLR 1362. The ordinary reader may engage in a certain amount of loose thinking when reading the article and may not be expected to read it with cautious and critical analytical care. Morgan v Odhams Press Ltd [1971] 1 WLR 1239. The plaintiff who seeks to rely on an innuendo meaning has to plead and prove the facts or circumstances which gave the words a special meaning. He has also to prove that the words were published to one or more persons who knew these facts or circumstances. Where identification is an issue, the matter can sometimes be decided by construing the words themselves in their context. Where identification depends on extrinsic facts, these extrinsic facts must be pleaded because they form part of the cause of action. Duncan & Neill on Defamation (2nd ed) par 6.04.
Difficult questions may arise where the words complained of contain defamatory allegations against a group of people. Where the plaintiff is not named, the question is: would reasonable persons reasonably believe that the words referred to the plaintiff? Duncan and Neill on Defamation (2nd ed) par 6.02. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119.
This brings me to the defendants' objection to par 6 of the amended statement of claim. The plea is that the first publication was understood to refer to the second plaintiff by way of innuendo in that the publication was made to those parents, staff and students with knowledge of the fact that the second plaintiff was one of four students (or alternatively a small number of students) who had been identified and disciplined by the defendants for misbehaviour.
Counsel for the defendants points out that the second plaintiff is not identified by name in the words complained of. He submits that the words are not reasonably capable of conveying the meaning that all four of the students had participated in each of the four categories of conduct which were said to have brought public disgrace to the college, namely, dangerous use of motor vehicles, vandalism, interference with property, and personal insult to others. On this view of the matter, the three imputations pleaded in par 6 could not be regarded as capable of conveying a meaning defamatory of the second plaintiff and should be struck out as not disclosing a reasonable cause of action.
Counsel for the defendants sought to distinguish the precept concerning identification of a plaintiff enunciated in Knupffer's case (supra), and in similar cases such as Bjelke‑Petersen v Warburton (1987) 2 Qd R 465 and Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175. In doing so, he placed reliance upon the decision of Hunt J in McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485. That was a case in which the plaintiff was one of three partners in a firm of private investigators. A newspaper had asserted that one of the men was involved in corrupt activities. Hunt J held that where matter complained of as defamatory asserts that one unidentified member of a small group or class was responsible for certain conduct and where there is nothing in that matter which points to any particular member of that group or class as the one who was so responsible, the matter is incapable of conveying any imputation of guilt in relation to each member of that group or class.
Hunt J distinguished Bjelke‑Petersen v Warburton (supra). In that case, each of the ministers in the Queensland government had sued in respect of allegations concerning "this government's corruption" with a query being raised as to "which ministers had their hands in the till". Hunt J considered that the first of those imputations was based upon a true class libel in that the reference to the government could, in its context, be interpreted as a reference only to the ministry and that such a class was sufficiently small for the matter complained of to be interpreted as asserting that each member of that class was guilty of corruption. Hunt J was of the view, however, that as to the "hands in the till" allegation a finding in favour of the plaintiffs was clearly wrong as it did not necessarily convey an imputation of dishonesty against each member of the ministry.
Hunt J adopted a similar analytical approach in indicating that he was not prepared to follow Pryke v Advertiser Newspapers Ltd (supra). In that case, the matter complained of criticised the conduct of certain industrial proceedings by an unnamed (but apparently easily identified) commissioner of the State Industrial Relations Commission. That commission had only four members, and each of them sued upon the basis that he had been identified as the commissioner involved. Hunt J criticised the reasoning of the South Australian Full Court on the basis that the defamatory imputation conveyed of each of the three commissioners not actually involved in the proceedings had not been precisely formulated. Hunt J went on to say in regard to the case before him concerning the three investigators at 491:
"As the matter complained of in the present action cannot, by its express wording, be interpreted as asserting that each member of the class was guilty of this particular conduct, and as there is nothing in the matter which points to the plaintiff as the one who is alleged to have been guilty of that conduct, it is incapable of conveying the imputation that it was the plaintiff who was guilty of that conduct."
He went on to say, again at 491:
"If only one of a class of three (or even one of a class of two) is alleged to have done a particular act, how could that allegation possibly be interpreted reasonably as asserting that all three of them (or both of them) probably did that act? The question has only to be asked for the fallacy in that proposition to be revealed. The highest that could be put is that the reader could suspect each of the members of the class of having done that act if the class is sufficiently small."

Put shortly, counsel for the defendants relied on the reasoning of Hunt J in McCormick's case (supra) in arguing that the first publication was not capable of conveying a meaning defamatory of the second plaintiff as a member of the group of four students who were known to have been disciplined. This was because the words did not suggest that all four of the students had perpetrated each of the four alleged categories of misconduct.
On the other hand, counsel for the plaintiffs contended that the precept enunciated in Knupffer's case (supra), which was applied in the two Australian decisions addressed by Hunt J, was properly applicable to the circumstances of the present case. The words complained of were an unqualified reference to the whole of the group said to be involved in the alleged conduct. It was therefore arguably defamatory of each and every member of the group and it was therefore not manifestly groundless or untenable to assert that the words were capable of conveying a meaning defamatory of the second plaintiff.
I have given careful consideration to the reasoning of Hunt J in McCormick's case (supra). Nonetheless, in the circumstances of the present case, I am not prepared to hold that the plea in par 6 should be struck out upon the basis that they fail to disclose a reasonable cause of action. I am not persuaded that the plea is manifestly groundless or untenable. It will, of course, be a matter for evidence as to whether it was known to certain people in the school community that a small number of students had been identified and disciplined by the defendants. However, on the assumption for present purposes that the matters pleaded can be made out, it seems to me that the words complained of are open to the interpretation that within the "vast majority" of the year 12 group there is a smaller group that has misconducted itself and that each member of the group has participated in each of the categories of misconduct specified in the first publication.
There is, admittedly, considerable force in the reasoning of Hunt J concerning Pryke's case (supra). The nature of the situation in that case clearly was that only one of the four commissioners possibly affected by the words complained of could have been the subject of the attack. Likewise, in McCormick's case (supra), it was clear that only one of the three investigators was under attack and this made it difficult to formulate defamatory imputations affecting the other two members of the firm. In the present case, however, there are no such lines of demarcation between members of the troublesome group and each facet of the behaviour in question is of a kind that could have been undertaken by each member of the group. It would therefore be open to a reader to conclude that each member of the group was a participant in what had taken place. Accordingly, I am not prepared to strike out par 6 upon the basis just mentioned.
The application to strike out went also to other aspects of the plea. This involved debate of a familiar kind as to whether the three specific imputations distilled from the words complained of were capable of arising from the words in question and whether, in any event, they could be said to be defamatory of the second plaintiff.
I have already noted that an imputation will be defamatory if it tends to lower the plaintiff in the estimation of right‑thinking members of society and that a statement will be regarded as capable of bearing an imputation defamatory of the plaintiff if the ordinary, reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is assumed readers are reasonable people of ordinary intelligence and education who are also fair‑minded and entertain a sense of justice. It is also assumed that they will read the article as a whole and in the context of its publication. Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679. The reader does not live in an ivory tower and is not inhibited by strict rules of construction. Nor is that person unusually suspicious, unusually naive or avid for scandal. Lewis v Daily Telegraph (supra) at 258.
The imputation set out in par 6.1 that the second plaintiff was a vandal is referable to the words complained of in which mention is made of "vandalism". In my view, the imputation arises from the words complained of and is capable of bearing a defamatory meaning. The imputation in par 6.2 that the second plaintiff used motor vehicles in a dangerous manner with reckless disregard for the safety of the road‑using public was criticised in that the first publication arguably referred to one alleged instance of dangerous use of motor vehicles and therefore cannot be regarded as giving rise to an imputation of habitual dangerous driving. The words complained of refer to "dangerous use of motor vehicles" and, in my view, the imputation pleaded arises from the material and is capable of bearing a defamatory meaning.
The imputation in par 6.3 that the second plaintiff had personally insulted members of the public was criticised on the basis that the words complained of spoke only of personal insult "to others". However, when read in context, the notion of a personal insult to others appears within a passage concerning various activities that are said to have "brought public disgrace" to the college. The tenor of the passage in question suggests that those involved in the conduct have been involved in behaviour which can be described as insulting to members of the public. Accordingly, in my view, the plea arises from the words complained of. Counsel for the defendants suggested that the reputation of the second plaintiff would not be lowered by an allegation that he had personally insulted members of the public but, in my view, an imputation to this effect is capable of conveying a defamatory meaning.
It follows that, in my view, the three imputations pleaded in par 6 are all referable to the words complained of and capable of conveying a defamatory meaning. They should not be struck out as failing to disclose a reasonable cause of action. In my view, they should not be struck out as vague and embarrassing or as likely to prejudice, embarrass or delay the fair trial of the action.
As to par 7 of the claim, counsel for the defendants drew attention to a supposed inconsistency between par 5 of the claim in which it is apparent that the first publication was sent to "parents of year 12 students" while as a fair reading of par 6 and par 7 would suggest that the publication complained of is a publication to parents, staff and students of the second defendant who knew the names of the disciplined group. In the absence of pleaded facts and matters as to how a letter addressed to parents may have reached a wider audience consisting of parents, staff and students there was said to be a degree of inconsistency which could arguably render the plea embarrassing.
Counsel for the plaintiffs answered this by saying that par 7 of the claim clearly identifies the class of persons who are said to have received the first publication (notwithstanding to whom it was addressed), namely, those parents, staff and students "with knowledge of the fact" that the second plaintiff was one of four students who had been disciplined. The extrinsic knowledge possessed by these people enabled them to identify the second plaintiff as the subject of the first publication. Counsel went on to argue that this plea properly takes account of the inevitable "grapevine effect" of the publication to the school community. The fact that the letter was addressed to "Dear Parents of Year 12 Students" is not conclusive of the issue as to who in fact received it. This is a question of fact for trial. The plea at par 7 is precise and cannot be regarded as objectionable. The party pleading to the statement of claim knows the case which will be advanced at trial.
In my opinion, the supposed inconsistency does not give rise to a plea that can be regarded as embarrassing. There are many circumstances in which a letter will find its way to persons other than the intended recipient. Accordingly, the real question is whether in examining the present claim there is a sufficient description of those who are said to have received the letter, irrespective of whether some particular person is named as the addressee. Subject to the discussion which follows concerning those who had the relevant degree of knowledge, the description of recipients given in par 7 is sufficiently precise and the plea should not be struck out as embarrassing or otherwise likely to prejudice or delay the fair trial of the action. I also reject the defence submission that par 7 was "pleaded hypothetically". In my view, the assertion that these are the people "with knowledge" amounts to an assertion that at the relevant moment they did actually have the requisite knowledge.
Counsel for the defendants also contended that par 7 is defective in that where an innuendo is relied upon, the plaintiff is obliged to provide as material facts the names or identities of those who are said to have the special knowledge that results in the conveyance of a meaning defamatory of the plaintiff, in this case, those with knowledge that the second plaintiff was one of a small group of students who had been disciplined.
Counsel for the defendants supported his stance by reference to Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 651. In that case, the plaintiff was a priest who gave up the priesthood to become a schoolteacher. Some years later, he complained of an article imputing that he had fathered an illegitimate child whilst still a priest. The Court of Appeal held that since the cause of action was based on a legal or true innuendo in that only a reader with special knowledge of the facts, either of the date of the plaintiff's marriage or of that of the birth of his child, could derive the alleged imputations from the article, and it was not likely that readers with such special knowledge lived in the area of the newspaper's circulation, the plaintiff was bound to plead that the relevant facts were known to some of the newspaper's readers and to identify the readers whom he alleged knew those facts. The paragraph in question was to be struck out of the statement of claim unless particulars were given within 14 days. Lord Denning MR said at 656 that the identity of the person who has knowledge of the special circumstances is a most material fact in the cause of action. It is the publication to him which is the very foundation of the cause of action. So he should be identified in the pleading itself or in particulars under it.
Counsel for the plaintiffs met this challenge by referring to Gumina v Williams (No 1) (1990) 3 WAR 342. In that case, a newspaper article about the activities of the Mafia did not name the plaintiff, but the plaintiff said that it was published of and concerning him. Commissioner Pullin QC noted that there was a degree of controversy in law as to whether the information giving rise to identify are material facts to be pleaded or whether they are to be given as particulars. On one view, the material fact which has to be pleaded is that the words were published of and concerning the plaintiff, but the facts identifying the plaintiff are particulars. Commissioner Pullin was persuaded to endorse this view and eventually ordered that particulars be provided.
I note in passing that Seaman: Civil Procedure appears to support the view approved by Commissioner Pullin. The learned author makes the following comment at p 5554 (O 20 r 13A.3) while dealing with the requirement in O 20 r 13A.1 that where a plaintiff pleads an innuendo he must give particulars of the extrinsic facts:
"Although Lewis v Daily Telegraph Ltd [1964] AC 234 at 279; [1963] 2 All ER 151 at 170 held that the extrinsic facts create a separate cause of action, and Bruce v Odhams Press Ltd [1963] 1 KB 697 at 705; 1 All ER 287 at 289 held them to be material facts to be pleaded, it is suggested that Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 80; 3 ALR 491 at 500 binds Australian courts to hold that they are particulars and not material facts, and subr (1) accords with that view. A plaintiff must give particulars of the facts and matters relied upon to support a true innuendo whether it be as to meaning and also as to identity, unless the facts which identify the plaintiff are widely known: Australian Liquor, Hospitality & Miscellaneous Workers Union v Mulligan (1995) 15 WAR 385 at 387."
Against this background, I will hold that the plaintiff is not obliged to plead as a material fact the precise identities of those persons who understood the words to refer to the plaintiff. The decided cases suggest that this matter can be dealt with by a request for particulars. The material facts have been sufficiently pleaded by describing the people having the special knowledge as those parents, staff and students with knowledge that the second plaintiff was one of a small group of students who had been disciplined. It follows that par 7 will not be struck out.
Paragraph 8A of the claim was challenged on the grounds that no meaningful particulars were provided of the alleged republication. The paragraph is said to be devoid of material facts in circumstances where it is not at all evident that republication was either the natural and probable consequence of the original publication or intended by the defendants. Counsel also asserted that it was not clear whether the plea was going to liability or as to damages.
The plaintiffs said in answer that the question of republication was a question for trial. I note that particulars forming part of par 8A indicate that, subject to discovery, the recipients of republications "include" republication to students and staff. It is said further that the acts of republication are relied upon by the plaintiff "as to the question of damages arising from the original publication".
To my mind, the plea in this paragraph is not sufficiently precise and the plea should be struck out on the grounds that it is embarrassing. If such a plea is to be used in support of a claim for damages, the plaintiff needs to know the manner and extent of the republication and, if relevant, its proximity to the original publication.

Aggravated and Exemplary Damages

The defendants challenged the adequacy of the facts and matters pleaded in support of the claim for aggravated damages reflected in par 9 and par 10 of the claim. They also challenged the adequacy of the claim for exemplary damages contained in par 11 which sought to import the facts and matters that had been set out in support of the claim for aggravated damages.
I will not traverse all the matters relied upon. The plaintiffs referred to a discussion on 3 November 1999, being the day prior to publication of the first letter, in which it is said the defendants were put on notice that the second plaintiff had not participated in the troublesome events. The plaintiffs say that the defendants nonetheless published the words complained of and at a time shortly before the TEE which had the potential to cause the maximum distress to the second plaintiff and, thereafter, refused to apologise.
Before turning to the adequacy of the pleading, it will be useful to refer to the principles bearing upon these two categories of damages.
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 at 149.
There is a wide range of circumstances which might warrant an award of aggravated damages, encompassing both conduct in the publication of the defamatory material and conduct thereafter. Damages will be aggravated only by conduct which is unjustifiable, improper or lacking in bona fides. A failure to apologise does not of itself necessarily justify an award of aggravated damages. Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No 960340; 21 June 1996.
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 jury to find that the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story to attract the custom of newspaper readers. Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71. Exemplary damages are designed to punish the wrongdoer regardless of any effect of the wrong upon the plaintiff. Ronci v Nationwide News Pty Ltd & Anor (supra).
Steytler J observed in Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997 that he would be loath to say that a failure to apologise could never give rise to exemplary damages. Much might, in the end, depend upon the circumstances. If the case was one in which an apology was self‑evidently called for and there was a conscious decision, notwithstanding that fact, to refuse to make an apology, then that might ground an award of exemplary damages. It is also apparent from that case that, although the same facts may provide the basis for an award of both aggravated and exemplary damages, it is appropriate to plead the claims for aggravated and exemplary damages arising from the same set of facts in separate paragraphs. Order 20 r9(3) provides that a claim for exemplary damages or a claim for aggravated damages must be specifically pleaded, together with the facts on which the party pleading relies.
Counsel for the defendants in the present case contended that the matters pleaded in par 9.1 to par 9.6 do not support a claim for aggravated damages. In particular, the proposition asserted in par 9.4 that the first publication was directed to a class of persons with the maximum potential to damage the second plaintiff's reputation could not be sustained in circumstances where the headmaster of a school was directing a letter to parents who had a direct and legitimate interest in the matters of conduct and discipline being referred to in the letter. The claim for aggravated damages was said to be untenable.
In the circumstances of this case, I am obliged to remind myself again that in the context of an application to strike out I must proceed on the basis that the allegations in the claim are accepted as true. The claim as pleaded permits me to infer that the second plaintiff was a student at the subject school at a time when the headmaster felt obliged to invoke certain disciplinary powers. The evidence at trial may or may not throw light on the matters in controversy but, for the time being, the claim is pleaded upon the basis that the second plaintiff was not involved in any misconduct, the headmaster was informed of this fact, but nonetheless proceeded to circulate a publication defamatory of the plaintiff, and refused to apologise when called upon to do so. If these allegations are accepted as true for present purposes, then they amount to a grave injustice and arguably to a wanton disregard of the second plaintiff's entitlement to be treated fairly. Such an injustice, and the refusal to apologise, is likely to have aggravated the injury allegedly caused by the publication complained of. It follows that I am not satisfied that the facts and matters advanced in support of the plea for aggravated damages should be struck out. It will be a question of evidence at the trial as to what discussions were held and as to the order in which certain steps were taken, but on the face of the pleading there is a basis for advancing a claim of this kind.

The defendants argue that in order to maintain a plea of exemplary damages, a plaintiff must plead facts and matters which are arguably capable of supporting a finding of conscious wrongdoing by the defendant, facts and matters which merit punishment. It follows from earlier discussion, in the course of which I noted that, accepting the facts pleaded as true, there had arguably been a wanton disregard of the plaintiff's rights in the circumstances of the present case, I am not persuaded that the plea of exemplary damages should be struck out. I have drawn attention to the fact that there is a distinction in law between aggravated and exemplary damages but, nonetheless, the respective pleas can often be supported by the same or similar particulars.

Defamation - Other Matters

Paragraph 12 sets out the terms of the second letter dated 5 November 1999 and sets the scene for the plea in par 13 and par 14 that these words were published of and concerning the second plaintiff and were defamatory of him by way of innuendo in that they were published to parents, staff and students having special knowledge of the fact that the second plaintiff was a member of the disciplined group.
The second letter is addressed simply to "Parents" and in its terms is broadly similar to the first letter although, in this case, there is explicit reference to the disciplinary action taken by the headmaster which is expressed in this way:
"The vast majority of our year 12 students are sensible and honourable young men. It is out of respect for them that I have taken the very strongest action against the few of their number who have let us down so seriously. Four year 12 students have been advised that should they decide to sit any TEE subject, Wesley will not provide that facility and the student will need to make alternative arrangements through the Curriculum Council."
One notes immediately that on this occasion there is a specific reference to "four year 12 students". In par 13 one finds five specific imputations set out, the first three of which correspond to the specific imputations set out in par 6. Two further imputations are added in these terms:
"13.4The second plaintiff had conducted himself so disgracefully during unofficial year 12 end‑of‑year celebrations as to be unfit to remain a student at Wesley College.
13.5The second plaintiff is so lacking in social values as to be unfit to remain a student at Wesley College."
Counsel for the defendants repeated the submissions made in relation to par 6 and par 7 and contended that par 13 of the claim should be struck out. It follows from my earlier response to those submissions that I am not satisfied that the paragraph in question should be struck out, bearing in mind that par 13.1 to par 13.3 equate to par 6.1 to par 6.3. When one turns to the additional imputations in par 13.3 and par 13.4, I consider that these imputations are not repetitious but represent a distillation of additional assertions to be found in the second publication which are referable to the language used in that publication and are capable of conveying a meaning defamatory of the second plaintiff. I am not prepared to strike out the additional imputations.
The defendants sought to strike out the plea in par 15 that the second publication conveyed meanings defamatory of the plaintiff to those parents, staff and students with knowledge of the fact that the second plaintiff was one of a small group of four students who had been disciplined. This brought into play the same issues that had been raised concerning par 7. It follows from my earlier ruling concerning par 7 that I will not strike out par15.
The defendants sought to strike out par 15A upon the basis of the submissions made earlier in respect of par 8A. In regard to that issue, my earlier ruling applies; that is to say, in my view, par 15A should be struck out as embarrassing. My earlier ruling also applies to the application to strike out the pleas in support of the claims for aggravated and exemplary damages in par 17 and par 18 as these pleas corresponded to the pleas in that regard previously advanced in respect of the first publication. It follows that the application to strike out par 17 and par 18 will be dismissed. These paragraphs disclose a reasonable cause of action and are not embarrassing.

Objections to the Contract Claim

Paragraph 19 of the statement of claim contains a plea that the first plaintiffs and the second defendant entered into a contract constituted partly in writing and partly by conduct whereby the second defendant agreed to provide educational and school services to the second plaintiff. The plaintiffs say that in regard to the 1999 year, the agreement was continued by the second plaintiff attending the school upon the basis that the first plaintiffs became liable for school fees. The plaintiffs say that it was an implied term of the agreement that:
"20.1Each party agreed, by implication, to do all such things as were necessary on their part to enable the other party to have the benefit of the agreement;
20.2the parties would act in conformity with the objective or purpose to which the agreement was directed;
20.3as to school year 12 (being 1999) the second defendant would provide educational and schooling services to the second defendant to properly prepare the second plaintiff to sit his TEE in November 1999, and that the second defendant would provide facilities for the second plaintiff to sit his TEE at the second defendant's premises."
These terms are said to be implied as a matter of law in order to give the contract business efficacy and upon the basis that the term is reasonable, equitable and fair and is so obvious as to go without saying. Further, the term is capable of clear expression, and is not inconsistent with the purpose and object of the agreement.
In par 22, one finds a plea that on or about 3 November 1999 and thereafter, in repudiatory breach of the terms of the agreement, the second defendant informed the first plaintiffs that it would refuse to allow the second plaintiff to sit his TEE upon the second defendant's premises. On 8 November 1999, the second plaintiff was forced, by reason of the second defendant's conduct to sit his first TEE, being discrete mathematics, at Penrhos College. The plaintiffs allege in par 24 that they have suffered and continue to suffer loss and damage. Particulars of this plea include reference in par 24(c) to loss and damage by way of "mental stress and vexation".
Almost every contract has some unstated content which must necessarily be implied if effect is to be given to its actual terms. Nonetheless, courts are slow to imply a term. In many cases, what the parties have agreed represents the totality of their willingness to agree. The more detailed and comprehensive the contract, the less ground there is for supposing that the parties failed to address their minds to the question at issue. Cheshire & Fifoot's Law of Contract (7th Aust ed) par 10.47. Evidence of the subsequent actions or statements of the parties to the contract is inadmissible unless it evidences a new agreement or unless it falls within one of the exceptions to the rule, such as evidence to explain technical expressions, evidence to identify the subject‑matter of the agreement or evidence to resolve a latent ambiguity. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; Posgold (Big Bell) Pty Ltd & Ors v Placer (Western Australia) Pty Ltd & Ors [1999] WASCA 217.
The High Court has repeatedly indicated that for a term to be implied the following conditions (which may overlap) must be satisfied, namely, first, it must be reasonable and equitable; second, it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; third, it must be so obvious that it goes without saying; fourth, it must be capable of clear expression; fifth, it must not contradict any express term of the contract.
Against this background, counsel for the defendants challenged the adequacy of par 20.3 of the claim. Counsel submitted that the implied term contended for by the plaintiffs was untenable in the circumstances of the present case in that a school must be presumed to have reserved to itself the right to control conduct and exercise various disciplinary powers. The most obvious example of this would be to control misconduct in the examination hall itself. Accordingly, an implied term suggesting that the school was required to allow a student to sit an examination did not conform to the criteria specified by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363 at 365. Such a plea was both untenable and embarrassing. Such a term would oblige the second defendant to provide the claimed facility, irrespective of the behaviour of the second plaintiff and might be said to deny or interfere with the second defendant's entitlement to discipline its students.
Counsel for the plaintiffs said in answer that the implied term pleaded in par 20.3 was not so clearly unarguable as to justify a striking‑out order. The plaintiffs' prospects in respect of that matter depended upon evidence to be adduced as to the circumstances of entering into the agreement and the nature of the relationship between parent, student and school. It was said to be clearly arguable that enrolment in year 12 had, as a fundamental incident (and therefore as an incident of business efficacy), that the student should be allowed an opportunity of sitting end of year 12 TEE examinations. Whether the implied term contended for was qualified by other implied terms or evidence adduced to resolve any matter of ambiguity were matters to be raised in the statement of defence. The plaintiffs were not obliged to anticipate a defence by pleading each and every possible other implied term of the agreement which might operate in the defendants' favour. Further, the defendants' submission that an implied term of the kind contended for would deny the second defendant's right to discipline its students was argumentative and therefore not a proper basis for holding that the alleged implied term was unarguable at law.
In my opinion, the implied term pleaded in par 20.3 does raise an arguable case. For present purposes, I must assume that evidence can be adduced to support such a plea. Even if it be established on the evidence that the defendants are at liberty to exercise various disciplinary powers, in my view, the presence of such powers is not necessarily inconsistent with an implied term of the kind contended for by the plaintiff. The term is pleaded precisely. It follows that par 20.3 will not be struck out as either untenable or embarrassing. In the case of a year 12 student, most parents would assume that the school will endeavour to prepare students at that level of seniority for the TEE examinations unless there is some clear contractual provision to the contrary. It is undoubtedly true that powers to discipline may be regarded as a necessary incident of this kind of contract and the exercise of those powers may have a bearing upon the relationship between the parties. Nonetheless, in my view, these are matters which are properly raised in the statement of defence.
The defendants submitted, in regard to par 22, that the reference to a repudiatory breach was mere surplusage and was therefore embarrassing. A repudiatory breach was only of significance if it was being relied upon in order to establish that the contract had been terminated, but in the circumstances of the present case it was clear that the plaintiffs were simply seeking damages. The plaintiffs said in answer that a plea of this kind was part of the narrative and served to establish the precise nature of the breach. In regard to this matter, I am persuaded by the submissions put on behalf of the defendants and I therefore rule that this plea should be struck out on the grounds that it is embarrassing.
I now turn to par 24(c) and the allegation that the plaintiffs have suffered loss and damage by way of "mental stress and vexation".
Counsel for both parties referred to Baltic Shipping Co v Dillon (1992) 176 CLR 344. In that case, a passenger on a cruise vessel suffered injury when the vessel sank 10 days into a 14‑day cruise. The High Court held that the passenger was not entitled to a refund of the fare because there had not been a total failure of consideration. The court also held that the passenger was entitled to compensation for disappointment and distress. Mason CJ, Toohey and Gaudron JJ held that damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation.
Counsel for the defendants argued that damages of the kind sought by the plaintiffs in the present case are clearly only recoverable in very limited circumstances. The facts and matters in this case did not fall within the narrow category of exceptions to the general rule where the underlying purpose of the contract was a serious educational purpose that necessarily carried with it certain disciplinary powers. On the other hand, the plaintiffs relied upon Jarvis v Swan Tours Ltd [1973] 1 All ER 71 and held that a contract for schooling fell within the criteria indicated by the High Court.
As to this matter, I am not persuaded that this is the kind of case in which damages can be recovered for mental stress and vexation. Parents are or should be aware that schooling often brings with it various disappointments and the process inevitably involves the imposition of restraints and the exercise of disciplinary powers. A contract covering such a wide range of possibilities cannot be said to fall within the comparatively narrow category of cases defined by the High Court in the Baltic Shipping case (supra), where compensation might be available for mental stress or vexation. Accordingly, I will strike out this subparagraph of the pleading upon the grounds that it does not disclose a reasonable cause of action and is also embarrassing.

Objection to Claim under Trade Practices Act

Paragraph 25 of the statement of claim and the following paragraphs pleaded facts and matters said to give rise to a claim under s 60 of the Trade Practices Act (Cth) 1974 or, alternatively, s 23 of the Fair Trading Act 1987 (WA). Both provisions are in essentially the same form and provide that corporations shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.
I note from Miller's Annotated Trade Practices Act (21st ed) at par 1.60.5 that this section, which is of potentially wide application, has received little judicial scrutiny. When the Act was introduced, the section was limited to the use of force. It was amended in 1986 to remove that limitation. Unlike the common law tort of intimidation, there is no requirement that harassment or coercion involve a threat of an illegal act. All that is required is that the harassment or coercion be "undue". Campbell v Metway Leasing Ltd (1998) ATPR 41‑630.
According to the learned author the term "undue" is likely to be given its ordinary meaning. The Macquarie Dictionary gives the ordinary meaning of the word as "unwarranted; excessive; too great." Accordingly, it will be a question of fact in each case. In Campbell v Metway Leasing Ltd (supra), the court expressed the view that the instituting of legal proceedings which are not vexatious, frivolous or an abuse of process would not be undue. However, this may be overstating the position. If instituting legal proceedings were, in all of the circumstances, regarded as unwarranted, that may be sufficient. An example may be taking winding‑up proceedings for a disputed debt.
The defendants said that a cause of action of this kind was manifestly incapable of arising on the facts pleaded in that the matters set out in par 28 by way of particulars were not conduct sufficient to support the plea. These particulars contained a repetition of those parts of the narrative which indicated that the second plaintiff had not been permitted to sit his TEE on the second defendant's premises and the defendants had purported to terminate his enrolment. Reference was also made to an alleged failure by the second defendant to comply with its guidelines concerning the disciplining of students. Those guidelines were said to provide a right of appeal and to avoid any summary action of the kind that was said to have occurred in the circumstances of the present case.
The plaintiffs placed reliance upon Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 93 in order to suggest that one should give full effect to the language of the provision and not be constrained by reasoning in cases concerned with causes of action in tort. Also see Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. Counsel for the plaintiffs argued that to strike out the claim would stifle development of the law in this area.
I must also take account of the recent decision of French J in Australian Competition & Consumer Commission v McCaskey [2000] FCA 1037. In that case, a debt collector and its employee admitted to engaging in undue harassment and coercion in connection with the collection of debts, the conduct complained of including various abrasive and menacing phone calls. French J noted that the term "harass" includes troubling by repeated attacks and tiring out or exhausting the besieged party. French J made these observations:
"The word 'harassment' as used in s 60 must serve two broad purposes. It describes a range of conduct, in connection with the supply of goods or services which involve, inter alia, applying repeated pressure to a consumer who is under no pre‑existing obligation to acquire. It also describes conduct in relation to a consumer who is under an unfulfilled obligation to pay for goods or services. Given the range of cases that it can cover, the question whether or not there is harassment involves evaluative judgment. The word 'undue' adds an extra layer of evaluation which is more relevant to the case of debt recovery than to the sale of goods or services. Repeated unwelcome approaches to a potential acquirer of goods or services could qualify as harassment and, so qualified, require very little additional evidence, if any, to attract the characterisation of 'undue harassment'. On the other hand a consumer who owes money to a supplier can expect repeated unwelcome approaches requesting payment of the debt if he or she does not pay. No doubt such approaches might also qualify as harassment. If legitimate demands are reasonably made, on more than one occasion, for the purpose of reminding the debtor of his or her obligation and drawing the debtor's attention to the likelihood of legal proceedings if payment is not made, then that conduct, if it be harassment, is not undue harassment. If, however, the frequency, nature or content of the approaches and communications associated with them is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor rather than convey the demand and an associated legitimate threat of proceedings, the harassment will be undue.
Section 60 can also cover cases in which the conduct complained of lacks the element of repetition necessary to constitute harassment, undue or otherwise. This requires consideration of the term 'undue coercion'."
In regard to "coercion, French J noted that the verb "coerce" included to constrain or restrain by force, or by authority resting on force; to effect by compulsion. He went on to say this at 28:
"The collection of debts may involve coercion in the sense that the debtor is subjected to the pressure of the demand and the legitimate threat of civil process for recovery with the additional cost and damage to credit which that can involve. Such pressure may be thought of as coercion but is entirely legitimate and not 'undue'. Where the demand includes content which does not serve legitimate purposes of reminding the debtor of the obligation and threatening legal proceedings for recovery but is calculated otherwise to intimidate or threaten the debtor, then the coercion may be undue. So if a threat is made of criminal proceedings, or of the immediate seizure and sale of house and property, a remedy not available in the absence of retention of title or some form of security, the coercion is likely to be seen as undue. The threat of criminal proceedings itself may be an offence against State laws. Quite apart from content the manner or circumstances of a demand or communication, including the language used, the time and place at which it is made and the person to whom it is communicated, may go beyond the legitimate purposes of drawing attention to the existence of the obligation and the consequences for non‑compliance. Again such a communication may amount to undue coercion. Obvious examples include the use of personally abusive or obscene language, conveying the demand to uninvolved family members, particularly children, or conveying the demand through a third party in order to embarrass the debtor when the debtor could reasonably have been the subject of a direct communication. Each case will turn on its own facts. Some useful examples of situations that may give rise to contraventions of s 60 are set out in the ACCC guidelines entitled 'Debt Collection and the Trade Practices Act' published in July 1999. As pointed out of course that publication is not a statement of the law. It can only be a guide. The recovery of unpaid debts can be pursued with firmness, determination and civility. It can do all those things without resorting to bullying, bluff, misrepresentation or stand‑over tactics. If it does the first and avoids the second it is unlikely to contravene the law."

When I transfer my attention to the circumstances of the present case, I must again proceed from the premise that for the purposes of a striking‑out application the matters alleged should be accepted as true. Looked at in that light, the plaintiffs' case is, in effect, that in the course of obtaining or attempting to obtain the educational services in question, he was subjected to unjustified defamatory allegations and various breaches of contract, including the misuse of disciplinary powers as a result of which the defendants achieved their aim of denying him access to the school facilities.
At a first glance, this rather stark portrayal of the plaintiffs' case might be thought to amount to undue harassment or coercion. It is important to remember, however, that in regard to both concepts French J drew a distinction between conduct occurring within the framework of existing contractual obligations and conduct unrelated to such constraints. Thus, in the former case, it is legitimate for a creditor to remind a debtor of his obligation to pay, provided the reminder is presented in an appropriate form.
When this approach is applied to the present case, it is open to the defendants to argue that, even if it be held, or accepted for the purposes of an application to strike out, that the defendants misused or exceeded their disciplinary powers, there can be no doubt from the facts and matters reflected in the statement of claim that whatever disadvantages were visited upon the second plaintiff flowed from a purported exercise of disciplinary powers and would be viewed in that way by parents and students alike. This might give rise to a sense of unfairness or injustice, and it might even give grounds for relief of the kind sought in the preceding sections of the statement of claim, but in the context of disciplinary action taken by a headmaster avowedly for the benefit of a school community, the steps taken cannot reasonably be regarded as being in the nature of an attack upon the second plaintiff in his capacity as a consumer, or as having been brought about as a result of an insidious use of threats or force. It is apparent from the facts and matters presented in the statement of claim that parents and students, including the plaintiffs, were essentially being reminded of the mutual obligations of all those comprising the school community to work in concert for the benefit of the community as a whole. In that respect, the present situation, to my mind, is completely unlike the normal commercial transaction between two supposedly independent contracting or potentially contracting parties.
I am persuaded to this view of the matter in the special circumstances of this case. If all the facts and matters contended for by the plaintiffs were established by the evidence, a reasonable observer might conclude that the second plaintiff had been treated unfairly, and that some form of redress was appropriate accordingly, but I doubt that a reasonable observer would conclude that the defendants' conduct was aimed at the second plaintiff specifically with a view to securing some outcome favourable to the defendants in connection with the supply of services to that particular student. In order to reach such a conclusion, I consider that the plaintiffs would have to plead a complete absence of bona fides on the part of the defendants amounting to malevolence. The facts and matters presently relied upon in the statement of claim do not appear to be of that order and it therefore follows, in my view, that the plaintiffs have not advanced an arguable case.
It follows, then, that in the special circumstances of the present case, I am not persuaded that the matters complained of in the statement of claim can be regarded as amounting to undue harassment or coercion within the meaning of the statutory provisions and I will therefore order that this part of the statement of claim be struck out. I will allow leave to replead in respect of this matter.
For the sake of completeness, I note that the defendants mounted a challenge to the plea in par 28.2 that in or about November 1999 the second defendant purported to terminate the second plaintiff's enrolment with the second defendant. This plea was advanced in support of the cause of action under the statutory provision. This plea was said to be embarrassing because in this context there could be no meaningful distinction drawn between a termination and a purported termination. I am persuaded that a plea in that form is embarrassing and will make an order for striking‑out accordingly.

Relief

Against the background of this discussion, I will now draw together the various rulings I have made.
As to the claim in defamation, the applications to strike out pars 6, 7, 10, 11, 13, 15, 17 and 18 will be dismissed. The applications to strike out par 8A and par 15A will be allowed, with leave to replead in respect of those paragraphs.
As to the claim in contract, the application to strike out par 20.3 will be dismissed. The application to strike out par 22 will be allowed on the grounds that it is embarrassing, with leave to replead. The application to strike out par 24(c) will be allowed, without leave to replead.
As to the claims under the Trade Practices Act and Fair Trading Act, par 25 to par 31 will be struck out on the grounds that they do not disclose a reasonable cause of action, with leave to replead. Further and in any event, par 28.2 will be struck out as embarrassing, with leave to replead.