Walter v Buckeridge - [2007] WASC 14

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WALTER -v- BUCKERIDGE & ANOR [2007] WASC 14

CORAM: MASTER NEWNES

HEARD: 21 NOVEMBER 2006

DELIVERED : 31 JANUARY 2007

FILE NO/S: CIV 2549 of 2003

BETWEEN: JULIAN ALAN WALTER
Plaintiff
AND
LEONARD WALTER BUCKERIDGE
First Defendant
BGC (AUSTRALIA) PTY LTD (ACN 005 736 005)
Second Defendant

Catchwords:

Defamation - Application to strike out "Polly Peck" plea - Whether imputation substantially different to imputation pleaded by plaintiff - Turns on own facts

Legislation:

Criminal Code (WA), s 371

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr J D MacLaurin
First Defendant              :     Mr S D Hall SC & Mr S M Davies
Second Defendant         :     Mr S D Hall SC & Mr S M Davies

Solicitors:

Plaintiff:     Clayton Utz
First Defendant              :     Mallesons Stephen Jaques
Second Defendant         :     Mallesons Stephen Jaques

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

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667
Nationwide News Pty Ltd v Moodie [2003] WASC 273

MASTER NEWNES: This is an application by the plaintiff to strike out parts of the defendants' defence of justification on the ground that they disclose no reasonable cause of action or are embarrassing.
It is necessary, in order to make the application explicable, to refer to the relevant parts of the statement of claim.

The pleadings

The plaintiff pleads that the first defendant ("Mr Buckeridge") was and is a director of the second defendant ("BGC") and of J‑Corp Pty Ltd ("J‑Corp"). BGC was and is a publisher of the "BGC Bulletin" magazine.
It is pleaded that, in or about December 2003, the defendants published in the December 2003 edition of the "BGC Bulletin" in an article written by Mr Buckeridge and entitled "Christmas Foreword", the following words of and concerning the plaintiff:
"2003 has been the toughest year of my working life but much has happened. During the year we purchased the 50% of J‑Corp that we did not own. This was very unpleasant business where during the accountancy investigation, large amounts of theft by Julian Walter were unearthed."
It is alleged that in its natural and ordinary meaning the publication meant, and was understood to mean, that the plaintiff had stolen large amounts of money from J‑Corp and has thereby committed a serious criminal offence.
In their defence, the defendants admit that Mr Buckeridge was the author of an article entitled "Christmas Foreword" in the December 2003 edition of the "BGC Bulletin" and admit that BGC published the "BGC Bulletin". The defendants deny that the words bore the defamatory meaning alleged by the plaintiff.
In par 6A of the defence, the defendants plead that if and insofar as the words bore the meaning pleaded in par 6 of the statement of claim, the words were true in substance and in fact. There are then set out a large number of alleged transactions by which the defendants claim that the plaintiff stole money from J‑Corp by fraudulently converting it to his own use or the use of others by converting the money with an intent to use it at his own will. In respect of each of the alleged transactions, it is pleaded that the plaintiff caused payment to be made by J‑Corp to a third party for goods or services that the third party had supplied to the plaintiff personally.
In par 6B of the defence, the defendants plead that if the words complained of bore any meaning defamatory of the plaintiff, then in their natural and ordinary meaning they meant, and were understood to mean, that the plaintiff had stolen from J‑Corp and those words were true in substance and in fact. In support of that plea, the defendants refer to all but one of the transactions pleaded in respect of par 6A and say that the references to "money" in those transactions should be read as references to "property".

The plaintiff's submissions

It was submitted on behalf of the plaintiff that the plea in par 6A of the defence fails to disclose a reasonable cause of action or is embarrassing in that it fails to plead precisely (or at all) the serious criminal offence of stealing that it is alleged the plaintiff has committed. It therefore fails to plead how or why the alleged acts and transactions constitute fraudulent conversion and also fails to plead how, why or that such alleged acts and transactions constitute the criminal offence of stealing.
It was submitted by counsel for the plaintiff that, having pleaded that the plaintiff has committed a "serious criminal offence", the defendants are required properly to plead the legislative provision or provisions creating and providing the elements of the alleged offence. Otherwise no reasonable defence is disclosed and the pleading is embarrassing.
Counsel submitted that a plea in the present form posed practical and real prejudice to the plaintiff and to the fair trial of the action. In order to know the case he must meet, the plaintiff is entitled to have the defence properly pleaded and confined to the elements of a criminal offence of stealing recognised under the law of Western Australia.
In respect of par 6B of the defence, it was submitted on behalf of the plaintiff, first, that as with par 6A it was objectionable because there was no reference to any legislative provision which makes, defines or creates the offence of stealing or that establishes a fraudulent conversion that constitutes stealing, and secondly, that the plea was not a permissible "Polly Peck" plea.
As to the first objection, counsel for the plaintiff relied on the same submissions as had been made in respect of par 6A of the defence.
In respect of the second objection, it was submitted that the plea was objectionable in two respects, first, there is no plea that a large amount was stolen and, secondly, there is no plea that a "serious criminal offence" had thereby been committed.
Counsel submitted that a "Polly Peck" plea must be pleaded with the same degree of precision as a plaintiff's imputation, must be less injurious and not substantially different from the plaintiff's pleaded imputation, and must be an imputation upon which the plaintiff, on the basis of his own pleadings, would be permitted to rely to obtain judgment after trial. A "Polly Peck" imputation in any other form does not disclose a reasonable defence and raises a false issue. Counsel referred to Nationwide News Pty Ltd v Moodie [2003] WASC 273 and Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 544 ‑ 545 per Gaudron and Gummow JJ.
It was submitted that, by the omission of any plea that the plaintiff had stolen a large amount and had thereby committed a serious criminal offence, the imputation pleaded in par 6B of the defence was substantially different from the plaintiff's pleaded imputation and accordingly did not fall within the principles applicable to such a plea.

The defendants' submissions

It was submitted on behalf of the defendants that the relevant part of the plea in par 6A of the defence mirrors the provisions of s 371 of the Criminal Code (WA) and the plaintiff could not be in any doubt as to the offence relied upon by the defendants in the pleading. It was unnecessary to refer expressly to the statutory provision. The elements of the offence had been sufficiently set out in the plea and from that the specific offence referred to was obvious.
Counsel accepted that the extent to which a defendant may plead a "Polly Peck" defence must be related to the extent to which a plaintiff may depart at trial from the plaintiff's pleaded meaning or meanings. He submitted that a plaintiff may rely at trial upon any meaning comprehended in or less injurious to those pleaded by him or which are a variant of the pleaded meaning, or a different nuance of the meaning, or a meaning less serious but not substantially different: Chakravarti v Advertiser Newspapers Ltd (supra); Nationwide News Pty Ltd v Moodie (supra).
It was submitted that the plea in par 6B of the defence was not substantially different from the defamatory meaning pleaded by the plaintiff. It plainly fell within the scope of a permissible "Polly Peck" defence and was unobjectionable.

Is the pleading defective?

In my view, the objection to par 6A of the defence is not made out. I accept the submission on behalf of the defendants that the elements of the offence are adequately set out in the plea and it is obvious that they refer to the offence of stealing set out in the Criminal Code. It is unnecessary specifically to refer to that provision. It was not suggested by counsel for the plaintiff that there were other provisions which could apply to the elements of the offence pleaded. I should add that if the plaintiff were in any doubt as to the provision of the Criminal Code to which the defendants were referring, it has been dispelled by the defendants' counsel on this application, who confirmed that it referred to s 371 of the Criminal Code.
The question as to whether or not the plea in par 6B fell within the permissible limits of a "Polly Peck" plea turned on two factors, namely, the omission from the plea of any reference to the alleged theft being of a large amount and the omission of any reference to the alleged theft constituting a serious criminal offence.
I do not think there is any great difficulty with the second point. Stealing is a serious criminal offence. The real point, it seems, is whether at trial the plaintiff would be permitted to rely upon an imputation simply that the plaintiff had stolen from J‑Corp.
Counsel for the plaintiff submitted that the problem with the plea in par 6B was that it would be made good if the defendants could show, for instance, that on one occasion the plaintiff had stolen anything, however minor. That was quite a different imputation to the imputation pleaded by the plaintiff. The difference between the plaintiff's imputation and the imputation pleaded in par 6B was not one simply of seriousness, but of kind.
It is, I think, now well established that a defendant who pleads a "Polly Peck" defence is limited to meanings upon which the plaintiff himself would be entitled to a verdict on the pleadings as they stand; that is, meanings which are not substantially different from, or more serious than, the imputations pleaded in the statement of claim.
In Chakravarti v Advertiser Newspapers Ltd (supra), the High Court considered, among other things, the extent to which a plaintiff is entitled to a verdict on a meaning not expressly pleaded in the statement of claim. Brennan CJ and McHugh J considered that a different nuance of meaning, or one less serious, to that pleaded by the plaintiff should be allowed to go to the jury provided that was not unfair to the defendant, but that a plaintiff cannot seek a verdict on a different meaning which so alters the substance of the pleaded meaning that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis. Their Honours considered, however, that a defendant is not entitled to plead justification in respect of an imputation not pleaded by the plaintiff.
Gaudron and Gummow JJ appeared to use as their criterion "disadvantage" to the defendant and considered that, as a general rule, there would be no disadvantage to the defendant in allowing the plaintiff to rely upon meanings comprehended in, or less injurious than, the meanings pleaded by the plaintiff or meanings which are simply a variant of those meanings, but there may be disadvantage if a plaintiff is allowed to rely on meanings which are substantially different or which focus on some different factual basis.
Kirby J adopted the notion of fairness and considered that this would generally permit imputations to go to the jury that are less serious than, but not substantially different from, those pleaded, or which are merely nuances or shades of meaning of those pleaded.
The extent to which a defendant can plead and seek to justify a meaning not pleaded by the plaintiff was considered by the Full Court of this Court in Nationwide News Pty Ltd v Moodie (supra). In that case, Steytler J (as his Honour then was), having canvassed the authorities, including Chakravarti v Advertiser Newspapers Ltd (supra) said (at [59] ‑ [61]):
"… the extent to which a defendant will be permitted to plead defamatory meanings different from those pleaded by the plaintiff will be constrained by the extent to which the plaintiff might himself or herself be permitted to rely, at the trial, upon imputations other than those pleaded by him or her.
No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff. If the plaintiff cannot succeed on a particular imputation which is different to that pleaded by him or her, then, to allow a defendant to plead that imputation, and seek to justify it, can only result in the creation of a false issue and prejudice to the proper trial process. On the other hand, if the defendant is able to justify a defamatory meaning which differs from that pleaded by the plaintiff but which might be found by a jury on the strength of the plaintiff's own pleading, then there is a basis for saying that the defendant can, and should, plead that alternative meaning and also the matters upon which it relies in contending that it is able to justify it. In this way the issues might be defined more precisely and there would be clear benchmarks against which the relevance of evidence might be assessed. I should add, as regards the concept of 'fairness' or 'disadvantage', that it can never be fair or advantageous to a plaintiff, or to the trial process itself, to permit a defendant to plead, and seek to justify, a meaning which could plainly not be found by a jury on the plaintiff's pleading.
An approach of this kind would, if I may adopt the language of Ormiston JA in Hore‑Lacy (at [24]), 'reduce the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility'."
Steytler J held that the meanings pleaded by the defendant were comprehended in the meanings pleaded by the plaintiff, were less injurious and not substantially different from those pleaded by the plaintiff, and they did not focus on a different factual basis. Accordingly they were meanings that might be found by a jury on the plaintiff's pleading and there was no unfairness or disadvantage to the plaintiff in allowing the defendant to plead and to seek to justify them.
Anderson J concluded that, at the least, the plaintiff's case will not be permitted to go to the jury, or to judgment, on an alternative meaning which is substantially different from, or more serious than, the false innuendos pleaded in the statement of claim. His Honour said at [11]:
"I can see no good reason why a defendant should be permitted to advance as a positive ground of defence an alternative imputation not relied on by the plaintiff and on which the plaintiff cannot obtain a verdict and then seek to justify that meaning … [Such an alternative imputation] is objectionable because it does not answer the claim and does no more than give rise to a false issue."
McLure J (as her Honour then was) agreed with Steytler J and expressly left for another day a final decision as to the role of "disadvantage" in determining the extent to which there could be a departure from the pleaded imputations.
In David Syme & Co Ltd v Hore-Lacy(2000) 1 VR 667, the Court of Appeal of Victoria held that a defendant who seeks to justify a defamatory meaning different to that pleaded by the plaintiff is confined to a meaning which is a variant of, or not substantially different from, a pleaded meaning and which is no more serious or injurious than the pleaded meaning.
In my view, the meaning pleaded in par 6B of the defence is a meaning that is arguably capable of being conveyed by the words complained of and is comprehended in the meaning pleaded by the plaintiff. In its terms, the imputation is of a lesser order of seriousness than the meaning pleaded by the plaintiff, but I do not consider that it is substantially different. Nor do I consider that it focuses on a different factual basis. The allegations of fact relied upon by the defendants to justify the meaning pleaded in par 6B of the defence are the same as the allegations of fact pleaded in support of the plea of justification to the meanings pleaded by the plaintiff, so the ambit of the factual enquiry at trial would not be expanded by the "Polly Peck" plea. There would be no disadvantage or unfairness to the plaintiff in allowing the defendants to plead and to seek to justify the meaning pleaded in par 6B.
I would therefore dismiss the plaintiff's application to strike out par 6A and par 6B of the defence.