Westerman v Edwards [No 2]
[2021] WASC 281
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WESTERMAN -v- EDWARDS [No 2] [2021] WASC 281
CORAM: TOTTLE J
HEARD: 21 JULY 2021
DELIVERED : 18 AUGUST 2021
FILE NO/S: CIV 2183 of 2019
BETWEEN: SHARON WESTERMAN
Plaintiff
AND
JOHN EDWARDS
First Defendant
KRED LEGAL PTY LTD
Second Defendant
WAYNE BERGMAN
Third Defendant
Catchwords:
Practice and procedure - Application to strike out paragraphs of statement of claim - Whether matters pleaded fail to disclose a reasonable cause of action - Whether matters pleaded are likely to prejudice, embarrass or delay the fair trial of the action - Whether matters pleaded fail to plead separate and distinct imputations - Turns on own facts
Legislation:
Charitable Trusts Act 1962 (WA), s 20
Rules of the Supreme Court 1971 (WA), O1 r 4A, O 1 r 48, O 20 r 19
Result:
Application to strike out allowed in part
Leave granted to the plaintiff to replead
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr S K Shepherd |
| First Defendant | : | Ms S Chrysanthou SC |
| Second Defendant | : | Ms S Chrysanthou SC |
| Third Defendant | : | Mr J D MacLaurin SC |
Solicitors:
| Plaintiff | : | Chris Stokes & Associates |
| First Defendant | : | Jackson McDonald |
| Second Defendant | : | Jackson McDonald |
| Third Defendant | : | Barry Nilsson Lawyers |
Case(s) referred to in decision(s):
David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73
DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Fogarty v Nationwide News Ltd [2005] WASC 2
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Green v Fairfax Media Publications Pty Ltd [2020] WASC 250
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
JWH Group Pty Ltd v Buckeridge (No 3) [2009] WASC 271
Kidd v Artus [2013] WASC 264
Knowles v Robert (1888) 38 Ch D 263
Maher v Nationwide News Pty Ltd [2013] WASC 254
Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Singh v Singh [2017] WASC 255
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Taylor v Jecks (1993) 10 WAR 309
Westerman v Edwards [2020] WASC 60
TOTTLE J:
Introduction
The plaintiff is a Njamal woman. In this action she is claiming damages for defamation arising out of the publication of a letter dated 6 July 2018 by a firm of solicitors (the second defendant) to the members of the Parliament of Western Australia. The letter was written on behalf of a group of Njamal people (the Njamal Native Title Claimants) to express their concerns about the plaintiff's conduct in relation to an inquiry into the Njamal's People's Trust. The inquiry was conducted pursuant to s 20 of the Charitable Trusts Act 1962 (WA). The first defendant signed the letter. It is alleged the letter was written with the knowledge and approval of the third defendant and that is the basis on which he has been joined as a defendant.
The third defendant has applied to strike out pars 12.1 to 12.20 and 12.22 to 12.28 and 12.31 of the further further re-amended statement of claim filed by the plaintiff on 23 March 2021. The impugned paragraphs plead the defamatory imputations allegedly conveyed by the publication giving rise to the claim.
The application is brought by a minute of orders filed on 8 April 2021 to which the third defendant has attached a 'notice of objection and grounds' setting out the basis on which the impugned paragraphs are challenged.
On 4 March 2020 Le Miere J struck out various paragraphs of the amended statement of claim that had been filed on 11 September 2019. In Le Miere J's reasons for decision,[1] his Honour set out the background to the action and in the course of the reasons set out the principles guiding the exercise of the court's power to strike out pleadings, and a number of the principles governing the pleading of defamatory meanings. I have applied those principles in determining this application and only brief reference to the rules and guiding principles is required.
[1] Westerman v Edwards [2020] WASC 60.
Applicable rules and guiding principles
The application is brought under O 20 r 19(1)(a) and (c) of the Rules of the Supreme Court 1971 (WA) on the grounds, in effect, that some of the impugned paragraphs do not disclose a reasonable cause of action, and also are expressed in terms that may prejudice, embarrass or delay the fair trial of the action. Other paragraphs are challenged solely on the basis that they may prejudice, embarrass or delay the fair trial of the action.
The jurisdiction to strike out a pleading should only be exercised sparingly.[2] The test has a high threshold and caution is exercised by courts on strike out applications.
[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 - 130; Taylor v Jecks (1993) 10 WAR 309, 313; Fogarty v Nationwide News Ltd [2005] WASC 2 [14]; JWH Group Pty Ltd v Buckeridge (No 3) [2009] WASC 271 [18]; Green v Fairfax Media Publications Pty Ltd [2020] WASC 250 [114].
Pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial 'because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general',[3] or because they contain unnecessary material.[4]
[3] Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998), 8 - 9; Kidd v Artus [2013] WASC 264 [26]; DM Drainage & Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170 [34]; David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73 [15].
[4] Knowles v Robert (1888) 38 Ch D 263, 271; Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472, 477.
The goals stated in O 1 r 4A (the elimination of delay beyond that reasonably required for the fair and just determination of the issues bona fide in contention) and the case management objects identified in O 1 r 4B(1) (in short - the just, efficient and timely determination of business, using resources proportionate to the value and complexity of the subject matter of the dispute), are also relevant to this strike out application.
Finally, in considering this application I bear in mind that a defamation action should not be allowed to become a 'trial by interlocutory ordeal'.[5]
[5] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 [22] (Kirby J).
The letter
In Le Miere J's reasons published on 4 March 2020 his Honour set out the relevant parts of the letter of 6 July 2018 and cross referenced the critical sentences in the letter to the plaintiff's pleas of the words relied on to sustain the defamatory meanings alleged. For ease of reference, in the following paragraphs I reproduce that section of Le Miere J's reasons adapted to refer to the further further re-amended statement of claim.
The letter is addressed 'Members of Parliament of WA'. It bears the salutation 'To whom it may concern' and the subject reference 'Inquiry into the Njamal People's Trust'. The letter states that Arma Legal act for the named applicants for the Njamal native title claims, who are described thereafter as the Applicants and that the Applicants:
have instructed us to write to you to express their anger and concern at the Inquiry and to seek your assistance to put their anger and concerns before the Parliament and before the government and the Attorney‑General. The Applicants have instructed us to their concerns as set out in this letter.
The letter then proceeds to describe circumstances surrounding the formation of the Inquiry, commencing with the statement that there was no consultation with the Applicants before the Inquiry was established and refers to the plaintiff, Ms Westerman, in the following terms:[6]
The Applicants understand the Inquiry may have been influenced by a complaint made by one person, Sharon Westerman. (1) We are instructed that Ms Westerman is a Nyamal person who has fallen out with the Trust and the Nyamal People. (2) Our instructions are that Ms Westerman has fallen out with the Trust because of private business dealings between her and a company owned by the Trust. (3) She has been charged with stealing as a servant from this company. (4) The Applicants instruct us that, ever since Ms Westerman fell out with the Trust she has waged a campaign to take control of the Trust involving community meetings and agitation. (5) She has not been successful in all her attempts to take control to date but in the process has caused great anger, dissent and division in the Nyamal community. (6) The Applicants consider Ms Westerman's personal bias as to the affairs of the Trust and her ulterior motives make her an unreliable and inappropriate person to be the primary basis on which an inquiry was established or as a source of information, should that be her role in the inquiry.
[6] In this, and in each extract of the letter which follows, the sentence numbers correspond to the pleas in par 9 of the further further re-amended statement of claim on which the plaintiff relies to sustain the defamatory meanings pleaded in par 12.
The letter goes on to describe the adverse impact of the Inquiry on the Trust and the Njamal People:
The Inquiry has cost the Trust money in terms of wasted staff time and external costs in responding to the Inquiry. (7) It has now been underway for close to 14 months. The Applicant has been advised it has cost the Trust over $1M in terms of wasted staff time and external costs. As Nyamal people and beneficiaries of the Trust, they are very concerned about the Trust having to use its resources to respond to the Inquiry rather than using them for the benefit and development of the Nyamal people as beneficiaries.
(8) The Inquiry has damaged the reputation of the Trust and Nyamal people. (9) It has caused the third parties to question the financial viability and integrity of the Trust and damaged business relationships, business opportunities and reputations. (10) The Inquiry has cast aspersions on the character of Nyamal people for over 13 months in circumstances where the Applicants do not understand why it was established other than apparently having been commenced following the complaint of a person who seems to want to take over the Trust and divide the Nyamal people.
The letter then contains the following two paragraphs which refer to the plaintiff:
(11) We are instructed that the Inquiry has given Ms Westerman fuel to spread false innuendos and to attack Nyamal people, whilst there have been no findings of any kind of any wrongdoing or irregularities to date. The Applicants are of the view that if the Inquiry has uncovered any irregularities then they should have been brought to the attention of the trustee by now. (12) It has caused arguments within the Nyamal community and led to the breakdown of relationships between Nyamal people. (13) It has affected the businesses of Nyamal people as their reputations have been called into question without any factual basis other than that there is an Inquiry which people interpret as inferring some wrongdoing.
(14) We are instructed that the Applicants understand that the Inquiry is responding to accusations made by Ms Westerman in a way that suggests she has some sort of influence on the Inquiry. (15) For example, we are instructed that Mr Kevin Allen, one of the members of the Applicants, was advised by a friendly party to Ms Westerman that a payment to him would be investigated. Mr Allen subsequently received a request for information on this issue from the Inquiry. (16) In a report in The Age Newspaper, the audited accounts of the Trust were then referred to. The Applicant seeks an explanation of how The Age obtained this confidential information. (17) As set out in this letter, the Applicants are firmly of the view that Ms Westerman has a personal grudge and ulterior motive that means she should not be allowed to have input into the Inquiry. The Applicants call for this to be investigated.
The letter concludes by saying that the Applicants want the Inquiry to be brought to an end as soon as possible and the circumstances surrounding its establishment be investigated by the Parliament.
The further further re-amended statement of claim filed 23 March 2021
In par 9 the plaintiff pleads the words used in the letter as follows.
9.1'… Ms Westerman is a Nyamal [sic] person who has fallen out with the [Njamal People's] Trust and the Nyamal [sic] People.'
9.2'… Ms Westerman has fallen out with the [Njamal People's] Trust because of private business dealings between her and a company owned by the Trust.'
9.3'She [Ms Westerman] has been charged with stealing as a servant from this company.'
9.4'… Ever since Ms Westerman fell out with the Trust she has waged a campaign to take control of the Trust involving community meetings and agitation.'
9.5'[Ms Westerman] has caused great anger, dissent and division in the Nyamal [sic] community.'
9.6'Ms Westerman's personal bias as to the affairs of the Trust and her ulterior motives make her an unreliable and inappropriate person to be the primary basis on which an enquiry was established or as a source of information …'
9.7'The Applicant [sic] has been advised that it [the Inquiry] has cost the Trust over $1M … As Nyamal [sic] people and beneficiaries of the Trust, the [the Named Applicants] are very concerned about the Trust having to use its resources to respond to the Inquiry rather than using them for the benefit and development of the Nyamal [sic] people as beneficiaries.'
9.8'The Inquiry has damaged the reputation of the [Njamal People's] Trust and Nyamal [sic] people.'
9.9'It [the Inquiry] has caused the third parties to question the financial viability and integrity of the Trust and damaged business relationships, business opportunities and reputations.'
9.10'The Inquiry has cast aspersions on the character of Nyamal [sic] people … apparently having been commenced following the complaint of a person who seems to want to take over the Trust and divide the Nyamal [sic] people.'
9.11'… the Inquiry has given Ms Westerman fuel to spread false innuendos and to attack Nyamal [sic] people …'
9.12'It [the Inquiry] has caused arguments within the Nyamal [sic] community and led to the breakdown of relationships between Nyamal [sic] people.'
9.13'It [the Inquiry] has affected the business of the Nyamal [sic] people as their reputations have been called into question without any factual basis …'
9.14'… the Inquiry is responding to accusations made by Ms Westerman in a way that suggests she has some sort of influence over the Inquiry.'
9.15'… Mr Kevin Allen, one of the members of the Applicants, was advised by a friendly party to Ms Westerman that a payment to him would be investigated. Mr Allen subsequently received a request for information on this issue from the Inquiry.'
9.16'In a report in The Age Newspaper, the audited accounts of the trust were referred to. The Applicant [sic] seeks an explanation of how The Age obtained this confidential information.'
9.17'… Ms Westerman has a personal grudge and an ulterior motive …'
Imputations - challenges - disposition
Paragraphs 12.1 - 12.15
The pleading
These paragraphs plead imputations to the effect that '[t]he Njamal Native Title Claimants believed' the plaintiff acted in a certain way or with a certain state of mind. Later paragraphs plead imputations that the plaintiff actually acted in the ways, and with the states of mind, alleged in pars 12.1 to 12.15. It is unnecessary to set out each of these paragraphs. Paragraphs 12.1, 12.5 and 12.17 and 12.21 provide sufficient illustration of the approach.
12.1The Njamal Native Title Claimants believed the Plaintiff was a Njamal Woman who was disloyal to the collective interests of all people recognised as Njamal people.
cf
12.17The Plaintiff was a Njamal woman who was disloyal to the collective interests of all people recognised as Njamal people.
And
12.5The Njamal Native Title Claimants believed that the plaintiff was a Njamal woman who whilst an employee, had stolen money or other property from a company owned by the Njamal People's Trust.
cf
12.21The plaintiff was a Njamal woman who, whilst an employee, had stolen money or other property from a company owned by the Njamal People's Trust.
Overview of parties' contentions
The third defendant contends that the Njamal Native Title Claimants' beliefs about the plaintiff are not defamatory and the pleas of such beliefs do not constitute proper defamatory imputations.
Further, so the third defendant contends, the fact that pars 12.1 to 12.15 effectively repeat the imputations in pars 12.17 to 12.31 with the addition of the introductory words '[t]he Njamal Native Title Claimants believed', bears out their objection that what another person 'believes' is not a defamatory imputation. The third defendant contends that allowing these pleaded imputations to stand would embarrass and prejudice a fair trial of the action because there would be an unnecessary and confusing enquiry into both whether an act or condition existed and also whether the Njamal Native Title Claimants believed it to be so.
In oral submissions counsel for the plaintiff contended, in effect, that the meanings in pars 12.1 to 12.15 were defamatory of the plaintiff because they conveyed that she had 'a bad reputation amongst her own people' and leaving aside what she may or may not have done, that was sufficient for the purposes of pleading a defamatory imputation.[7] Conformably with that contention, the plaintiff's counsel accepted that the imputations could be justified by establishing that the Native Title Claimants held the beliefs attributed to them in each of pars 12.1 to 12.15.
Consideration and disposition
[7] ts, 21 July 2021, 68.
In Singh v Singh,[8] Le Miere J summarised the basic principles about the pleading of imputations as follows:[9]
Many authorities have dealt with the rules relating to the pleading of imputations. Whether an imputation has been properly pleaded is to be determined as a matter of practical justice. However, the following propositions emerge from the authorities. First, distinct meanings should be pleaded. Secondly, distinct meanings should be separately pleaded - because of the potential for a rolled up plea to cause confusion. Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged. Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning.
[8] Singh v Singh [2017] WASC 255.
[9] Singh v Singh [23].
In my judgment, the pleas in par 12.1 to 12.15 offend the third of the principles in Le Miere J's summary - an imputation must express the precise act or condition asserted of or attributed to the plaintiff. The imputations are directed to the beliefs of the Native Title Claimants and not to an act or condition of the plaintiff. Counsel for the plaintiff's acceptance that the imputations could be justified by the defendants establishing that the Native Title Claimants held the beliefs attributed to them, highlights the point that the substance of the imputations is not an act or condition of the plaintiff but the beliefs of the Native Title Claimants.
This deficiency is not overcome by the plaintiff's counsel's submission that, to publish a statement that a person believes the plaintiff has a bad reputation within a profession or a social group 'leaving aside what they have or haven't done' is defamatory. That may be so, but the pleading of a defamatory imputation is required to identify with precision the act or condition attributed to the plaintiff and conveyed by the published words - rather than someone else's belief. It is in this respect that the pleas in pars 12.1 to 12.15 are deficient.
If the imputations were to be interpreted in broader terms as conveying a composite imputation that the Native Title Claimants held the stated beliefs and the plaintiff had conducted herself in such a way as to cause those beliefs to be held, then this would give rise to the further problem identified by the third defendant, that is, the imputations are not separate and distinct from those pleaded in pars 12.17 to 12.31. It is well-established that a plaintiff may not plead imputations which are not different in substance. A test as to whether two meanings are different in substance is whether the same evidence could be used to justify both meanings.[10] If the imputations were understood as having composite meanings the same evidence could justify the imputations in pars 12.1 to 12.15 and the 12.17 to 12.31 imputations.
[10] Singh v Singh [37] (Le Miere J).
Further, it follows from what I have written that the pleas of the beliefs of the Native Title Claimants give rise to false issues. I will strike out pars 12.1 to 12.15 on the grounds that each of them fails to disclose a reasonable cause of action, and on the ground that they are likely to prejudice, embarrass or delay the fair trial of the action.
Paragraph 12.16
The pleading
Paragraph 12.16 reads as follows:
The Njamal Native Title Claimants held concerns about the honesty and integrity of the Plaintiff that had caused the Njamal Native Title Claimants to instruct the Second Defendant to publish the words complained of to all members of the West Australian Parliament.
Overview of the parties' contentions
The substance of the third defendant's complaint about this paragraph is the same as their primary complaint in respect of pars 12.1 to 12.15, that is, the concerns held by the Njamal Native Title Claimants about the plaintiff's honesty and integrity are not of themselves defamatory.
Consideration and disposition
In my view, for substantially the same reasons as those given for striking out pars 12.1 to 12.15, par 12.16 should be struck out as disclosing no reasonable cause of action and on the separate ground that it is likely to prejudice, embarrass or delay the fair trial of the action.
Paragraphs 12.17 and 12.19
The pleading
Paragraphs 12.17 and 12.19 read as follows:
12.17The Plaintiff was a Njamal woman who was disloyal to the collective interests of all people recognised as Njamal people.
12.19The Plaintiff was a Njamal woman who was motivated to be disloyal to the collective interests of all people recognised as Njamal people because of private business dealings with a company owned by the Njamal People's Trust.
Overview of the parties' contentions
The third defendant's complaints are that these paragraphs are repetitious and prolix. They contend the paragraphs do not plead separate and distinct imputations because they both refer to the plaintiff being 'disloyal to the collective interests of all people recognised as Njamal people'. The third defendant argues that doing something said to attract a defamatory meaning, and being motivated to do the very same thing, does not give rise to separate and distinct imputations.
Further the third defendant contends the paragraphs are pleaded in broad terms that fail to crystallise the ultimate distillation, 'the sting', of the alleged defamatory meaning. The third defendant argues also that the imputation pleaded in par 12.19 is unnecessarily complicated and repetitive.
The plaintiff contends that the sting in par 12.17 is 'disloyalty' and that the sting in par 12.19 is the motivation by personal interests to be disloyal. The plaintiff contends that, in certain circumstances, words which convey that an act was motivated by particular considerations may convey an imputation separate and distinct from words that merely convey that the act was done.[11]
Consideration and disposition
[11] ts, 21 July 2021, 72 - 75.
In Maher v Nationwide News Pty Ltd,[12] Kenneth Martin J made a number of observations about the need to plead meanings with precision and about the difficulties that arise if imprecise imputations are left to stand. Those observations are particularly apposite and they bear repetition in full:[13]
[12] Maher v Nationwide News Pty Ltd [2013] WASC 254.
[13] Maher v Nationwide News Pty Ltd [27] - [32].
Meanings contended for by a plaintiff must be exact, be it a popular (false) innuendo arising exclusively from the words of the publication, or a legal (true) innuendo, arising out of the words as augmented by further knowledge held by the particular reader. The imputation must capture the true essence of the 'sting' of the publication concerning alleged wounds to the plaintiff's character complained of. An imputation must be a precise distillation of the essential grievance: see in this respect the observations by Stephen J in Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1, 17 - 18; Hunt J in Monte v Mirror Newspapers Ltd; and Commissioner Pullin QC in Gumina v Williams (No 1).
Failure to satisfy the precision criterion will render an imputation vulnerable to being struck down, on the basis that it is legally embarrassing. As imputations complained of might ultimately be assessed by a jury, precision is an indispensable requirement.
Formulated imputations also lay down the platform upon which pleaded defences (particularly a defence of justification raising the truth or substantial truth of the imputation) may seek to be advanced by a defendant. Absent requisite precision in formulating a plaintiff's imputations, there are likely to be generated diverting flowthrough consequences in subsequent pleadings which may impinge on the efficient running of a trial.
Imprecision in the formulation of a plaintiff's imputations can arise through:
(a)an imputation not being reduced to its absolute essence out of the words complained of;
(b)an imputation being cluttered by unnecessary words or concepts; and
(c)a mixing or merging of more than one essential grievance, so as to create overall confusion or uncertainty as to the intended meaning.
In respect of (c) above, I repeat the observation of Anderson J in Taylor v Jecks (319):
'[d]istinct imputations should be distinctly pleaded so that the defendant can deal with them separately, otherwise there is potential for much confusion.'
See also, Anderson J's following evaluation of the imputations in that case, including as to whether the presence of unnecessary words manifested a deficiency sufficient to undermine a pleaded imputation (Taylor v Jecks (319)).
These evaluations do raise matters for judgment or questions of degree, about which reasonable minds may differ. In Favell v Queensland Newspapers Pty Ltd, the plurality observed that a scenario of differing reasonable minds was a pointer towards a conclusion that an interlocutory attack should fail: see (189 - 191).
An imputation is taken to include all other imputations that do not differ in substance and are no more injurious or serious than the pleaded meaning.[14]
[14] Slim v Daily Telegraph Ltd [1968] 2 QB 157, 175 (Diplock LJ), 185 (Salmon LJ).
'Disloyal' is an adjective capable of a range of meanings and the precise meaning will depend on context. The degree of precision required must be assessed by reference to the publication itself.[15]
[15] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
The context in which 'disloyal' is used in pars 12.17 and 12.19 does not elucidate its meaning by identifying what it is that the plaintiff has done to manifest disloyalty. Used on its own the word 'disloyal' does not convey the precise distillation of the grievance. In this respect it is similar to the word 'dishonest' used in an imputation in an earlier version of the pleading that was struck out by Le Miere J.[16] In my judgment, the contents of the letter dated 6 July 2018 permit the imputation of disloyalty to be pleaded with a greater level of precision. Unless the plaintiff is more precise in expressing the imputation the third defendant will not know what he must plead and prove to justify it.
[16] Westerman v Edwards [41] - [44].
I would strike out pars 12.17 and 12.19 on the grounds that they lack precision and thus they may prejudice, embarrass or delay the fair trial of the action.
I do not accept the third defendant's contention that if the act attributed to a plaintiff is defamatory, the plea of being motivated to do the act is not capable of giving rise to a separate and distinct imputation of a more serious nature. By way of example, it might be said of a plaintiff that she has been disloyal to a social group of which she is a member, but to say that she was motivated to be disloyal out of a desire to obtain a financial benefit, as opposed to, for example, some ideological reason, conveys a more serious imputation. That said, (and depending on how the plaintiff repleads, if she chooses to replead some refinement of these imputations) in addition to the element of repetition in pars 12.17 and 12.19 of which the third defendant complains, there is a substantial degree of overlap between the plea concerning the plaintiff's motivation in 12.19 and the pleas in pars 12.22, 12.23, 12.24, 12.25, 12.26, 12.27 and 12.28 concerning the plaintiff acting in specified ways to 'further her private interests' and 'for her personal ulterior motives'. 'Private interests' and 'personal ulterior motives' are expressions which are wide enough to encompass 'private business dealings with a company owned by the Njamal People's Trust'.
I would not strike out par 12.19 on the ground that it fails to plead a separate and distinct imputation when read in the context of the plea in par 12.17 but if the imputation is refined to plead 'disloyalty' with the precision required then that may well lead to the substance of the newly formulated imputation in par 12.19 being repeated in one or more of the later paragraphs to which I have referred. Care must be exercised to ensure that there is no repetition between the 'disloyalty motivation' plea and any later 'ulterior motives' plea.
Paragraphs 12.18 and 12.20
The pleading
Paragraphs 12.18 and 12.20 read as follows:
12.18The Plaintiff was a Njamal woman who was acting contrary to the objects of the Njamal People's Trust.
12.20The Plaintiff was a Njamal woman motivated to act contrary to the objects of the Njamal People's Trust because of private business dealings with a company owned by the Nyamal People's Trust.
Overview of the parties' contentions
The third defendant's challenge to these paragraphs is the same as the challenge to pars 12.17 and 12.19 - he contends the paragraphs are repetitive and do not plead separate and distinct imputations. The third defendant contends the expression 'acting contrary to the objects of the Njamal's People's Trust' is a plea in broad terms which fails to crystallise the ultimate distillation of the alleged defamatory meaning. In addition, the third defendant argues par 12.20 is also unnecessarily complicated and repetitive.
The plaintiff answers the challenge made to the failure to plead the ultimate distillation of the alleged defamatory meaning as that the pleaded imputation reflects the generality of the words used in the letter, '[the plaintiff] has fallen out with the Trust' and 'The Applicants consider [the plaintiff's] personal bias as to the affairs of the Trust'.
Consideration and disposition
The objects of a trust are usually specified in a trust deed. They are often wide-ranging in scope. The letter of 6 July 2018 does not refer to the objects of the Trust though it does refer to the use of the Trust's resources 'to respond to the inquiry rather than using them for the benefit and development of the Nyamal [sic] people as beneficiaries'. The letter also contains statements that the plaintiff has 'fallen out' with the Trust and has a 'personal bias as to the affairs of the Trust'.
The difficulty is that the use of the expression 'the objects of the Njamal People's Trust' in the formulation of the imputation means that it covers a wide range of conduct. If the expression had been used in the letter that might have warranted the use of the expression in the formulation of the imputation but it was not. In my judgment, the plea that the plaintiff 'was acting contrary to the objects of the Njamal People's Trust' lacks the specificity to encapsulate the ultimate distillation of the defamatory meaning. The imputation neither identifies what act or acts were attributed to the plaintiff nor in what respect they were contrary to the objects of the Njamal People's Trust. I would strike out the paragraphs on the basis that the lack of precision may prejudice, embarrass or delay the fair trial of the action.
As to the complaint about the plea of 'motivation' I repeat what I have said above.
Paragraphs 12.22, 12.23 and 12.24
The pleading
Paragraphs 12.22, 12.23 and 12.24 read as follows:
12.22The Plaintiff was a Njamal woman who acted disruptively at Njamal Community meetings so that she might take control of the Njamal People's Trust to further her private interests.
12.23The Plaintiff was a Njamal woman who unreasonably unsettled people recognised as Njamal people so that she might take control of the Njamal People's Trust to further her private interests.
12.24The Plaintiff was a Njamal woman who would (and had) intentionally acted to cause anger, dissent, and division amongst people recognised as Njamal people to further her private interests.
Overview of the parties' contentions
The third defendant contends these paragraphs are repetitive and fail to capture the ultimate distillation of the defamatory meaning. The third defendant argues also that par 12.23 is a rolled up plea, or alternatively that it is prolix.
The plaintiff contends that the pleaded imputations reflect the words used in the letter dated 6 July 2018 and that the paragraphs plead distinct imputations.
Consideration and disposition
Paragraph 12.22 pleads an imputation that is distinct from those pleaded in pars 12.23 and 12.24. Paragraph 12.22 focuses on the plaintiff's disruptive conduct at meetings whereas pars 12.23 and 12.24 concern the plaintiff's conduct more generally.
Paragraph 12.23 suffers from the difficulty that the expression 'unreasonably unsettled' is imprecise. Further, pars 12.23 and 12.24 fail to plead distinct imputations - the imputation in par 12.23 does not differ in substance from the imputation (apparently alleged) in par 12.24. Paragraph 12.23 is a less serious version of 12.24. I would strike out par 12.23 on the ground that it lacks precision and on the ground it does not plead a separate and distinct defamatory imputation from that pleaded in par 12.24.
In its present form, the grammar in par 12.24 is confused by the inconsistent use of tenses and this obscures the meaning alleged and it should be struck out on that basis.
Parenthetically, I observe the imputation in an earlier version of the pleading that the plaintiff 'has sought to create dissent and division amongst Njamal People against the interests of the Njamal people' was not struck out by Le Miere J and was allowed to stand on the basis it was pleaded at a level of generality appropriate to the terms of the publication complained of.[17]
Paragraphs 12.25 and 12.31
The pleading
[17] Westerman v Edwards [59].
Paragraphs 12.25 and 12.31 read as follows.
12.25The Plaintiff was a Njamal woman who held a bias personal regarding the management of the Njamal People's Trust arising from her private interests that rendered her untruthful when making statements regarding the conduct of the Njamal People's Trust.
12.31The Plaintiff was a Njamal woman who would not give truthful evidence to the Inquiry to pursue an ulterior purpose and to further her personal interests.
Overview of the parties' contentions
The substance of the third defendant' complaints in respect of these paragraphs is that they are repetitive and are not separate and distinct imputations - they both, in effect, refer to the plaintiff being untruthful due to her personal interests. Further, the third defendant alleges the paragraphs fail to crystallise the ultimate distillation of the alleged defamatory meaning.
Counsel for the plaintiff said that par 12.25 was directed to the truthfulness of the evidence the plaintiff had given and 12.31 was directed to the evidence the plaintiff might give in the future.
Consideration and disposition
These paragraphs suffer from confused syntax, '... a bias personal ... that rendered her untruthful ...' and '... a Njamal woman who would not give truthful evidence ... to pursue an ulterior purpose ...' which obscures the precise nature of the imputations. In my judgment the paragraphs do not plead separate and distinct imputations. The focus in both paragraphs is on the plaintiff's alleged untruthfulness which is a consequence of an 'ulterior purpose' constituted by 'her personal interests'. I think it is unlikely that addressing the syntactical difficulties will cure the repetition. I am not persuaded that the plaintiff's argument, that the imputation in par 12.25 is about past evidence and par 12.31 is about evidence that may be given in the future, is sufficient to distinguish the imputations. I think that the substance of the imputations is the same - by reason of her personal interest or bias, the plaintiff is not capable of giving truthful evidence.
I do not accept the third defendant's criticism that the paragraphs do not plead the ultimate distillation of the alleged defamatory meaning. The imputation is pleaded in terms that reflect the level of generality of the relevant passages in the letter.
I will strike out pars 12.25 and 12.31 on the grounds that they do not plead separate and distinct meanings and on the ground that the syntactical difficulties obscure the precise nature of the imputations.
Paragraphs 12.26 and 12.27
The pleading
Paragraphs 12.26 and 12.27 read as follows:
12.26The Plaintiff was a Njamal woman who was motivated by personal ulterior motives when seeking to have the Government of Western Australia establish the Inquiry.
12.27The Plaintiff was a Njamal woman who sought to have the Government of Western Australia establish the Inquiry to further her personal interests without regard to a high economic and social cost and significant reputational damage to the people recognised as Njamal people.
Overview of the parties' contentions
The substance of the third defendant's complaints in respect of these paragraphs is that they do not plead separate and distinct imputations.
The plaintiff contends that the addition of the words in par 12.27, 'without regard to a high economic and social cost and significant reputational damage to the people recognised as Njamal people', is sufficient to distinguish the imputations.
Consideration and disposition
With some hesitation and recognising that the discretion to strike out should be exercised sparingly I accept the plaintiff's submission that the paragraphs plead separate imputations.
Paragraph 12.28
The pleading
Paragraph 12.28 reads as follows:
12.28The Plaintiff was a Njamal woman who had intentionally used the Inquiry damaging false allegations about members of the Njamal people recognised as Njamal people for her personal ulterior motives.
Overview of the parties' contentions
The third defendant draws attention to the ellipsis between 'inquiry' and 'damaging' and says that the paragraph does not make sense. The third defendant contends also that the paragraph repeats, in essence, the same alleged meaning pleaded in pars 12.25 and 12.31. Further, the third defendant alleges the paragraph fails to crystallise the ultimate distillation of the alleged defamatory meaning and is 'unnecessarily wordy and complicated'.
Counsel for the plaintiff accepted that par 12.28 required amendment but argued that the plea the plaintiff had made 'damaging false allegations about members of the Njamal people' was sufficient to distinguish this imputation from the imputations pleaded in pars 12.25 and 12.31.
Consideration and disposition
In its present form par 12.28 is unclear and should be struck out. Assuming, however, the words missing from par 12.28 are 'to make' I would allow par 12.28 to stand. I consider the imputation pleaded is sufficiently distinct from those the plaintiff has attempted to plead in pars 12.25 and 12.31.
Concluding observation
In Monte v Mirror Newspapers Ltd[18] in the course of commenting on the importance of pleading imputations that differ in substance from one another, Hunt J said that there should be no limit on the number of imputations pleaded.[19] That statement was made in the context of an action based on one newspaper article. The plaintiff had pleaded nine imputations that it was conceded 'offend[ed] egregiously against the requirements of r 11(3) that each imputation must differ in substance from the others'. In an amended statement of claim the plaintiff pleaded one imputation. Hunt J's observation that there should be no limit on the number of imputations pleaded must be understood in the context of the case in which it was made. It should not encourage the pleading of a large number of imputations. Pleading multiple imputations (especially if the imputations are different permutations of essentially the same 'sting') does not strenghten a plaintiff's case, rather it serves to confuse. And, it has a real capacity to frustrate the attainment of the goals specified in O 1 r 4A and r 4B both at the interlocutory stages and at trial.
[18] Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663.
[19] Monte v Mirror Newspapers Ltd (677B).
Leave will be granted to the plaintiff to replead. I will hear the parties as to the terms of the orders to be made and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
18 AUGUST 2021
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