Weeks v Nationwide News Pty Ltd [No 4]
[2019] WASC 350
•2 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WEEKS -v- NATIONWIDE NEWS PTY LTD [No 4] [2019] WASC 350
CORAM: LE MIERE J
HEARD: 13 AUGUST 2019
DELIVERED : 2 OCTOBER 2019
FILE NO/S: CIV 2879 of 2017
BETWEEN: CLIFFORD GERALD WEEKS
Plaintiff
AND
NATIONWIDE NEWS PTY LTD
First Defendant
AMOS AIKMAN
Second Defendant
Catchwords:
Practice and procedure - Pleadings - Strike out application - Application to strike out some of the defendants' particulars of justification - Whether particulars are capable of justifying the imputation - Whether plaintiff has satisfied the test for striking out particulars of justification - Turns on own facts
Defamation - Defences - Justification - Qualified privilege - Whether the particulars pleaded are capable of proving the truth of the relevant imputation - Turns on own facts
Practice and procedure - Application for further and better particulars - Whether defendants should answer the plaintiff's further requests for further and better particulars - Turns on own facts
Legislation:
Defamation Act 2005 (WA), s 30
Result:
The plaintiff's application be dismissed
The defendants should answer the plaintiff's further requests for further and better particulars
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| First Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
| Second Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | MacPherson & Kelley Lawyers |
| Second Defendant | : | MacPherson & Kelley Lawyers |
Case(s) referred to in decision(s):
Arnold & Butler v Bottomly [1908] 2 KB 151
Charan v Nationwide News Pty Ltd [2019] VSCA 36
Dare v Pulham (1982) 148 CLR 658
Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79
Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Greek Herald Pty Ltd v Nikolopolous (2001) 54 NSWLR 165
Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299
Hickinbotham v Leach (1842) 152 ER 510
J'Anson v Stewart (1787) 99 ER 1357
Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365
Mutch v Sleeman (1928) 29 SR (NSW) 125
Stocker v Stocker [2019] UKSC 17
Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148
Zierenberg v Labouchere [1893] 2 QB 183
LE MIERE J:
Summary
The plaintiff was the Director General of the Department of Aboriginal Affairs of Western Australia (DAA) from July 2011 to November 2016. In October 2017 he was appointed Executive Director of Central Australia within the Department of the Chief Minister of the Northern Territory Government.
On 2 November 2017 the first defendant published on its website, The Australian, an article written by the second defendant, Mr Aikman. The plaintiff says that Mr Aikman also republished the article by posting a tweet, which contained a hyperlink to the article on The Australian website. The article makes statements about the plaintiff and the DAA at the time the plaintiff was its Director General. The plaintiff claims that the words published by the defendants bear the defamatory meaning that the plaintiff was incompetent in his profession as the head of a government department.
The defendants plead justification. That is, if the published words bear the meaning alleged by the plaintiff, they are true. The defendants give particulars of justification. The defendants also plead that the publication was made on an occasion of qualified privilege under s 30 of the Defamation Act 2005 (WA) or at common law. They give particulars of the plea of qualified privilege.
The plaintiff requested further and better particulars of some of the defendants' particulars of justification and some of the defendants' particulars in support of their plea of qualified privilege. The defendants have delivered further and better particulars in response to the plaintiff's request. The defendants declined to answer some of the plaintiff's requests. The plaintiff seeks an order that the defendants answer some of the requests they have declined to answer. The plaintiff seeks an order striking out two of the particulars of justification provided by the defendants.
For the reasons which follow:
(1)the words 'and other directors' will be struck out of particular (m) of the defendants' particulars of justification;
(2)particular (m) of the defendants' particulars of justification must be amended consequentially upon the strike out of the words 'and other directors';
(3)the plaintiff's application to strike out particulars (h) and (m) of the defendants' particulars of justification will otherwise be dismissed; and
(4)the defendants should answer requests 14.3, 15.3 and 16.3 of the plaintiff's request for further and better particulars.
The article
The article complained of appears under the headline 'Questions over Northern Territory top job posting'. The article begins:
The former head of Western Australia's strife-torn Aboriginal affairs department, who left behind an agency riven with allegations of bullying and a toxic culture, has been appointed to a key Red Centre post in the Northern Territory under controversial, race-based hiring rules.
Cliff Weeks [the plaintiff] was given the job of Executive Director Central Australia in the Department of the Chief Minister on an annual salary of $246,537 under Special Measures diversity provisions.
The article goes on to refer to the Special Measures diversity provisions in accordance with which the plaintiff was appointed to the position. Those provisions require the government to appoint the best indigenous candidate who meets the selection criteria for a positon. The article says that the rules were designed to increase indigenous public sector employment but:
[I]nsiders say they are instead causing less-suitable, often interstate candidates to be appointed to key local positions …
The article then returns to the plaintiff stating that the plaintiff:
[Q]uietly left his post as head of WA's Department of Aboriginal Affairs last year after more than five years in the job. At the time, the DAA was wracked by controversy over its poor handling of Aboriginal heritage issues in the town of Broome. A staff survey identified high levels of workplace bullying and low confidence in management. The problems were so severe that the then WA Aboriginal affairs minister, Peter Collier, criticised his own department for poor communication and a lack of procedural fairness. Yawuru Aboriginal Corporation CEO Peter Yu called the DAA at that time 'highly incompetent'.
The article goes on to describe the process by which the plaintiff was appointed to the Northern Territory job. A letter sent to unsuccessful candidates is said to have stated that the plaintiff demonstrated his experience across all criteria and at interview the plaintiff demonstrated this experience through examples of government responses he led in the communities of Roebourne and Oombulgurri. The article then says:
Roebourne has since become notorious for paedophilia. Oombulgurri closed in 2011.
The remaining paragraphs of the article report statements on behalf of the Northern Territory Chief Minister and the Department of the Chief Minister about the process by which the plaintiff was appointed to the Northern Territory position.
The plaintiff pleads that the article was defamatory in its natural and ordinary meaning and was understood to mean that the plaintiff was incompetent in his profession as the head of a government department.
Defence of justification - paragraph 8
The present disputes arise from the defendants' second further amended defence dated and filed on 1 April 2019, which for convenience I will refer to as their defence.
In [8] of their defence, the defendants plead that if the article conveyed the defamatory meaning pleaded by the plaintiff (that the plaintiff was incompetent in his profession as the head of a government department) then that meaning was substantially true. The defendants give particulars of justification. The particulars are that the plaintiff, during his tenure as Director General of the DAA, engaged in the conduct set out in the paragraphs indexed (a) ‑ (n).
Paragraphs (a) - (f) of the particulars of justification relate to feedback forms completed by senior women in the DAA who attended a seminar organised by the Public Service Commission, in which the women were asked to provide their opinions about senior management of the DAA. The particulars proceed as follows. The feedback forms came to the attention of the plaintiff. At a meeting of a number of senior staff of the DAA, the plaintiff referred to what one of the women had said about him on a feedback form and said, among other things, 'we'll just make her cry'. The plaintiff then instructed his personal assistant to review DAA records to attempt to determine which staff member had provided the negative feedback form.
Particular (g) is that the plaintiff acted in a mistrustful and contemptuous manner towards the Department of Premier and Cabinet (DPC) in that, amongst other things, he referred in derogatory and offensive terms to the Deputy Director General of the DPC before at least one member of his senior staff.
Particular (h) is that the plaintiff promoted a junior lawyer in the DAA to the position of General Counsel over one of the more senior lawyers in the DAA, and when the lawyer attempted to provide legal advice in her new role, the plaintiff sent her an email which said that she was not there to give him 'fucking legal advice' but was there to 'do his fucking legal work for him'.
Particulars (i) and (j) refer to the plaintiff putting himself in a conflict of interest by allowing his wife, who worked as a nurse at a nearby hospital, to occupy a parking spot in the carpark in the DAA's office building.
Particulars (k) and (l) refer to the plaintiff promoting an employee favoured by him, Mr James Strickland, to a position which had a higher salary.
Particular (m) is that the plaintiff allowed directors of the DAA to be engaged on fixed term contracts in breach of an Enterprise Bargaining Agreement.
Particular (n) is that in response to an employee of the DAA bringing an Industrial Relations Committee claim arising from the plaintiff refusing to extend the employee's contract, the plaintiff took action resulting in the branch of the DAA which the employee's role fell under being abolished.
Particulars of qualified privilege
Under [9] of their defence, the defendants pleaded that if the article conveyed the meaning that the plaintiff was incompetent in his profession as the head of a government department, then the publications were made upon an occasion of qualified privilege pursuant to s 30 of the Defamation Act (statutory qualified privilege) alternatively at common law (common law privilege). The defendants give particulars relating to statutory qualified privilege, particulars relating to common law privilege and particulars of reasonableness.
The particulars of reasonableness include that prior to the publication of the article the defendants had the information set out in subparagraphs A ‑ O. For the purposes of this application the following subparagraphs are relevant:
L.Information provided to the second defendant by Confidential Source A … that …;
M.Information … by a government source, Confidential Source B …;
N.Information from both Confidential Source A or Confidential Source B to the effect that …;
O.Information from a union movement source. Confidential Source C to the effect that ...;
Plaintiff's request for further and better particulars
By a notice of 1 May 2019 (the Request), the plaintiff requested the defendants to supply further and better particulars of some of the particulars subjoined to [8] and [9] of the defendants' defence. Requests 13 to 16 sought particulars in relation to Confidential Source A, Confidential Source B and Confidential Source C referred to in the defendants' particulars of reasonableness.
By a memorandum of proposed orders dated and filed 7 May 2019, the plaintiff applied to strike out some paragraphs of the defendants' defence.
On 31 May 2019, the defendants' solicitors by letter responded to the plaintiff's request for further and better particulars.
By further and better particulars dated and filed 24 June 2019, the defendants provided answers to some of the plaintiff's requests and declined to answer some of the requests. In relation to the requests concerning the confidential sources, the defendants declined to answer the requests on the ground that they amounted to a request for evidence of the confidentiality of Mr Aikman's sources and their identities.
Following further communications between the plaintiff's solicitors and the defendants' solicitors, the matter came before me on 25 June 2019. On 25 June 2019, I ordered that the plaintiff file and serve a minute of proposed orders and made directions for the filing of affidavits and submissions.
The plaintiff was not satisfied with the defendants' further and better particulars. By a memorandum of proposed orders dated and filed 26 June 2019, the plaintiff sought orders that the defendants file and serve further and better particulars in answer to some of the plaintiff's requests. In relation to the plaintiff's requests for particulars concerning the confidential sources, the plaintiff sought further and better particulars in answer to his requests, or alternatively, an affidavit verifying the facts and basis on which the defendants contend they should not be required to provide the requested particulars.
On 1 July 2019, the defendants filed amended further and better particulars of their defence. The amended further and better particulars gave new particulars in relation to [(h)] and [(m)] of their particulars of justification.
The plaintiff's application for answers to his request for further and better particulars came before me again on 1 July 2019. The parties made submissions in relation to the plaintiff's request for further and better particulars. The defendants agreed to file an affidavit concerning the confidential sources. I directed the parties to file a memorandum of proposed directions.
On 8 July 2019, the plaintiff filed a memorandum of proposed orders which sought orders that particulars (h) and (m) of the defendants' particulars of justification be struck out.
On 11 July 2019 I ordered, amongst other things, that the defendants file and serve an affidavit of Mr Aikman verifying the facts and basis on which the defendants contend they should not be required to provide the requested particulars of the confidential sources.
On 5 August 2019, the defendants filed an affidavit sworn by Mr Aikman on 2 August 2019 concerning the confidential sources.
Matters dealt with in these reasons
There are two matters which remain to be decided. First, the plaintiff's application to strike out particulars (h) and (m) of the defendants' particulars of justification. Secondly, the plaintiff's application for an order that the defendants answer requests 14.3, 15.3 and 16.3 of the Request in which the plaintiff requests particulars of the pleas in subpars M, N and O of [(i)] of the particulars of reasonableness subjoined to [8(i)] of the defence, which particulars relate to information provided by confidential sources.
Particulars (h) and (m)
Particulars (h) and (m) may conveniently be considered together. The plaintiff submits that those particulars are not capable of justifying the imputation that the plaintiff was incompetent in his profession as the head of a government department.
Particular (h) subjoined to [8] of the defence is:
h)The plaintiff promoted a junior lawyer in the DAA to the position of General Counsel, over one of the more senior lawyers in the DAA. When she attempted to provide legal advice in her new role, the plaintiff sent her an email which said, inter alia, that she was not there to give him 'fucking legal advice' but was there to 'do his fucking legal work for him'.
In answer to the plaintiff's Request the defendants provided the following amended further and better particulars on 1 July 2019:
… the name of the person promoted by the Plaintiff is Madge Thomas.
The email was sent in late 2014 or early 2015.
The appointment of senior executive staff members within the Department of Aboriginal Affairs required the prior approval of the Public Sector Commission. The Plaintiff created the position of General Counsel for Madge Thomas to be appointed to. The role of General Counsel under the Public Sector EBA in Western Australia is exempt from that approval process because it is a 'Special Calling Level' role. Notwithstanding this, the role to which Ms Thomas was appointed was intended to and did entail the salary and responsibilities of a senior executive member of staff. The plaintiff created the position and appointed Ms Thomas to it so that the appointment, which should have been subject to approval by the Public Sector Commission because of the salary and responsibilities attached to it, could be made without such approval.
Particular (m) is:
The Plaintiff allowed directors of the DAA to be engaged on fixed term contracts in breach of the Enterprise Bargaining Agreement in place between the DAA and the Community and Public Sector Union.
In answer to the plaintiff's Request the defendants provided the following amended further and better particulars on 1 July 2019:
The Plaintiff allowed Ms Anna Wyatt, among other directors, to be engaged on a fixed term contract.
The Plaintiff caused Ms Wyatt's and other directors' engagement on a fixed term contract.
The Plaintiff caused Ms Wyatt and other directors to be engaged on a fixed term contract without following the proper procedure for Corporate Executive approval for such an appointment.
The Plaintiff caused Ms Wyatt and other directors to be appointed to on‑going positions within the Department of Aboriginal Affairs that were required to be advertised before being filled. The positions to which those persons were appointed were not advertised. In order to circumvent those advertising requirements, the plaintiff engaged those persons on fixed‑term contracts that could be renewed if necessary. The appointment of persons by means of fixed‑term contracts did not need to be advertised. By that means, the plaintiff was able to appoint persons to on‑going positions without ever having to advertise those positions before filling them, as was required in respect of those position.
The plaintiff's contentions
The plaintiff submits that particulars (h) and (m) are not capable of justifying an imputation of incompetence for the following reasons. The particulars, if proven, would arguably demonstrate deliberate misconduct on the part of the plaintiff. The word 'incompetent' imports concepts of ineptitude and a lack of skill, knowledge or capacity. The word 'incompetent' does not suggest deliberate misconduct or conduct designed to achieve a particular result. It is implicit in the defendants' particulars that the plaintiff was successful in his endeavour to design conduct that avoided certain outcomes. This does not demonstrate 'incompetence', but the converse ‑ competence in deliberating designing and executing a course of conduct to achieve, or avoid, a particular outcome.
The plaintiff says, further, that the words 'other directors' should be struck out of particular (m) because the use of those inclusive words leaves it open to the defendants to rely upon things not specified, or not specified with sufficient particularity, and therefore of which the plaintiff has had no or no proper notice.
The defendants' contentions
The defendants submit particulars (h) and (m) should not be struck out for the following reasons. First, the plaintiff has not satisfied the test for striking out particulars of justification ‑ that the imputation is so obviously untenable that it cannot possibly succeed. Secondly, the plaintiff draws a false dichotomy between deliberate action and incompetence and asserts too narrow an interpretation of 'incompetence'. Thirdly, the plaintiff fails to allow for the use, evidence and inferences drawn from the particulars and that they should be taken as a whole.
The defendants submit that there is nothing objectionable so as to justify striking out the words 'and other directors' in particular (m) for the following reasons. First, it is reasonable in the circumstances for the defendants to plead a singular and distinct particular of justification, identify such persons within that category while indicating that there are others within that category which the defendants cannot presently, but will after discovery, subpoena and other interlocutory processes, identify for the plaintiff. Secondly, the steps and processes that are likely to be ordered before trial will inform the plaintiff of the case he has to meet. Thirdly, there is a distinction between cases where a defendant's plea is reserving the right to provide further particulars of persons or instances within the singular subject/particular of justification and where the defendant is purporting to reserve the right to provide, after discovery and subpoena, further and different singular subject/particulars of justification.
The strike out test
The court may strike out any part of a defence on the ground that it discloses no reasonable defence. As a general rule the court will only strike out a pleading on that ground if it is so clearly untenable that it cannot succeed ‑ the General Steel test.[1]
[1] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130.
The court may strike out a particular of justification if, taken alone or in combination with other particulars, it is incapable of proving the truth of the relevant imputation.
The court may also strike out any part of a defence if it may prejudice, embarrass or delay the fair trial of the action.
Particulars
Particulars have a number of functions. One function is to define the issues for decision in the action and thereby control the scope of discovery and enable the court to determine the relevance and admissibility of evidence to be adduced at the trial.[2] It is not the function of particulars of justification to put an interpretation upon the words of the material complained of but to limit the scope of the evidence admissible in support of the allegation that the imputation conveyed by those words were true.[3]
[2] Dare v Pulham (1982) 148 CLR 658, 664.
[3] Mutch v Sleeman (1928) 29 SR (NSW) 125, 134 (Street CJ, Ferguson & Campbell JJ).
Particulars provided in support of the defence of justification must be capable of proving the truth of the defamatory meaning sought to be justified.
The court must have regard to the function of particulars to define the issues in the case and thereby control the scope of discovery and limit the scope of evidence admissible in support of the allegation that the imputation conveyed by the words complained of was true. The court must not allow to stand particulars which are clearly irrelevant or not capable of proving the truth of the defamatory meaning sought to be justified. However, the court must exercise caution before striking out any particulars of justification.
The defendants submitted that the court should not adopt an atomised approach to the particulars and should not assume a role in pre‑empting the use that may be made of any particular evidence at trial,[4] if the evidence would be admissible in support of any single imputation. I agree. An atomised approach ignores the need for the defendants to be allowed to put their whole case, drawing inferences from different parts of the evidence. The particulars are a summary of the relevant facts which the defendants will seek to prove by evidence adduced at trial.
[4] See Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 [19] ‑ [20] (McCallum J).
The court should strike out a particular of justification on the ground that it is incapable of proving the pleaded imputation only in a clear case. It is for the jury (or trial judge sitting as the tribunal of fact) to decide whether the facts proved by the defendants establish that the plaintiff was incompetent in his profession as a head of a government department. Whether the imputation is true involves an evaluative judgment whether the facts as found satisfy the description 'incompetent in his profession as a head of a government department'. Furthermore, the meaning or content of that description is itself an evaluative term not a merely descriptive term.[5]
[5] See Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475.
Meaning of the imputation
The plaintiff and the defendants put forward different meanings of the words 'incompetent in his profession as the head of a government department'.
Three things may be said about the meaning of the imputation pleaded by the plaintiff. First, dictionary definitions of the word 'incompetent' do not limit the meaning of the imputation.[6] Dictionary definitions may be used as a check on the natural and ordinary meaning of words.[7] The meaning of an alleged defamatory statement is to be determined according to how it would be understood by the ordinary reasonable reader; it is not fixed by linguistically precise dictionary definitions, divorced from the context in which the statement was made.[8]
[6] See for example Stocker v Stocker [2019] UKSC 17 (Stocker) [47] Lord Kerr (with whom Lord Reed, Lady Black, Lord Briggs & Lord Kitchin agreed).
[7] Stocker [22] ‑ [24].
[8] Stocker [25].
Secondly, the meaning of the word 'incompetent' is informed by its context in the pleaded imputation, in this case it is qualified by the words 'in his profession as the head of a government department'.
Thirdly, the meaning of an imputation must be considered in the context of the published material by which the imputation was conveyed.[9] It is for the jury (or tribunal of fact) to decide whether the plaintiff has made out the imputation he alleges That involves evaluative judgments which require the jury to decide the meaning of the imputation pleaded and whether it is conveyed by the article complained of.
[9] Greek Herald Pty Ltd v Nikolopolous (2001) 54 NSWLR 165 [18] ‑ [28] (Mason P with whom Wood CJ at CL agreed); Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 [291] ‑ [295] (Hodgson, Tobias & McColl JJA); Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79 [169] (Basten JA); Charan v Nationwide News Pty Ltd [2019] VSCA 36 [112] ‑ [140] (Beach, Niall & Ashley JJA).
Particulars (h) and (m) should not be struck out
There is a real issue concerning the capacity of imputations (h) and (m) to prove the substantial truth of the imputation they are alleged to justify. At its core, incompetence connotes knowledge, skills and attitudes considered to be unsatisfactory or inappropriate rather than misconduct or unethical behaviour. The matters in the article complained of giving rise to the imputation refer to the failures of, and dysfunctional state of, the department the plaintiff was head of but not to the plaintiff himself engaging in breaking any rules or other unacceptable behaviour.
However, the particulars are not so clearly incapable of proving the substantial truth of the imputation pleaded that they should be struck out. There are many and varied conceptualisations of competence and incompetence. It is difficult to determine the outer limits of what may be incompetence in the head of a government department because different people will have different conceptions of the standards the head of a government department should meet and what does, and does not, constitute incompetence as the head of a government department. The matters set out in particulars (h) and (m) are not so clearly outside the range of what jurors may consider, taken with other matters, constitute incompetence as a head of a government department that they should be summarily dismissed before trial.
Whether or not evidence in relation to the subjects or 'topics' identified by particulars (h) and (m) will be admissible is a matter to be determined at trial by the trial judge considering each item of evidence sought to be adduced, having regard to the whole of the pleadings and the way in which the parties respective cases are presented.
The 'other directors'
Where the imputation is general in nature the defendant in a plea of justification must state specific instances of conduct imputed to the plaintiff which justify the imputation.[10] Here, the pleaded imputation is general in nature. In a plea of justification the defendants must specify the conduct of the plaintiff, whether acts or failures to act, that justify the charge.
[10] J'Anson v Stewart (1787) 99 ER 1357; Hickinbotham v Leach (1842) 152 ER 510.
Particular (m) asserts that the plaintiff caused Ms Wyatt and other directors to be appointed to positions that require to be advertised without advertising them. Each instance of the plaintiff causing a director to be appointed in the alleged circumstances is a separate instance said to indicate incompetence. The defendants must give sufficient particulars of each such instance of conduct to enable the plaintiff to know the case he has to meet and to prepare to meet it.
The defendants seek to distinguish this case from the case where a defendant gives some instances of conduct but reserves the right to rely upon things not specified, or not specified with, sufficient particularity and therefore of which the plaintiff has had no or no proper notice. The defendants say there is a distinction to be drawn between cases where a defendant's plea is reserving the right to provide further particulars of persons or instances within a singular subject/particular of justification, and where the defendant is purporting to reserve the right to provide, after discovery and subpoena, further and different singular subjects/particulars of justification. The defendants say that in this case they plead a singular and distinct subject/particular of justification, identify such persons within that category while indicating that there are others within the category who the defendants cannot presently, but will after discovery and other interlocutory processes, identify for the plaintiff.
The distinction drawn by the defendants is a distinction without a difference. There is a linguistic or conceptual distinction between any number of instances where a defendant seeks to rely upon instances of conduct which are not identified or not identified with sufficient particularity to give the plaintiff proper notice of the case he has to meet. Each time the plaintiff caused a director to be appointed in the alleged circumstances is a separate instance of conduct said to constitute or evidence incompetence. It is not to the point that each instance of conduct is of the same kind. The plaintiff can no more rely upon the allegation in relation to 'other directors' in particular (h), than may a defendant who seeks to justify an imputation that the plaintiff habitually refuses to pay just claims upon insurance policies rely upon allegations that the plaintiff had refused to pay just claims, other than those identified in the particulars given by the plaintiff.[11] Another example would be a defendant who seeks to justify the imputation that the plaintiffs were charity swindlers by stating the instances upon which he relies are that the plaintiffs appropriated, for their own purposes, monies received for the home and they caused statements to appear in the annual balance sheets of the home or cash supplies by the plaintiff and loans made by the plaintiff, which were not in fact supplied or lent out of their own monies.[12] In each case the particulars are not sufficient because they fail to identify with sufficient particularity each of the instances upon which the defendant relies to prove the general allegation.
[11] Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148.
[12] Zierenberg v Labouchere [1893] 2 QB 183.
It is not sufficient that the defendants give the best particulars they can and will give particulars sufficiently identifying each instance after discovery and other interlocutory processes. A defendant must give adequate particulars before obtaining discovery and can obtain inspection of the plaintiff's documents only in respect of the specific facts or instances stated in their particulars of justification.[13] The inclusion of the words 'and other directors' causes particular (m) to lack the necessary specificity and must be struck out.
[13] Zierenberg v Labouchere , Yorkshire ProvidentLife Assurance Co v Gilbert & Rivington; Arnold &Butler v Bottomly [1908] 2 KB 151.
Particular (m) contains many plural words which should be singular when the words 'and other directors' are struck out. For example 'positions', 'persons', 'contracts' and 'them'. The particular should be amended accordingly.
Particulars in relation to confidential sources
The plaintiff seeks answers to requests 14.3, 15.3 and 16.3 of its Request which requests particulars of the pleas in subpars M, N and O of (i) of the particulars of reasonableness subjoined to [8(i)] of the defence. The plaintiff requests, in relation to the information conveyed by each of the confidential sources referred to in subpar M, N and O, that the defendants provide particulars of the person or people to whom the information was provided.
The defendants do not object to providing the particulars. They say that it is obvious from the particulars themselves that the information was provided to Mr Aikman. The relevant particulars do not expressly say to whom the information was provided by the confidential source. Each of the subparagraphs is drafted in the passive voice, which refers to the information and its source but not to whom the information was provided.
Senior counsel for the defendants, Mr Blackburn SC, said in the course of the hearing on 13 August 2019 that the information in each case was provided to Mr Aikman.[14] In any event the matter should be formalised by the defendants delivering further and better particulars in relation to each of pars M, N and O giving particulars of the person or people to whom the information was provided. That will ensure that the particulars are properly and easily accessible without recourse to transcripts.
[14] Mr Blackburn first said that he had made the same statement during the hearing on 25 July 2019 but on reflection, and without checking the transcript, he was unable to say that was so.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere2 OCTOBER 2019