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
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
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Taylor v Jecks (1993) 10 WAR 309
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…
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- AGLC
- Westerman v Edwards [No 2] [2021] WASC 281
- Case
- [2021] WASC 281
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the plaintiff's pleadings were precise enough to withstand the defendants' challenge that they lacked clarity and risked prejudice. Specifically, the court had to determine if the terms 'disloyal' and 'dishonest' were sufficiently defined in the context of the allegations and whether they amounted to separate and distinct imputations. Additionally, the court considered whether the repetition of certain allegations constituted an issue that could prejudice the fair trial of the action.
The court found that the term 'disloyal' was not sufficiently precise in the context of the plaintiff's allegations, and that the pleadings lacked the necessary specificity to avoid prejudice. The court held that the plaintiff needed to provide more precise details of the disloyal acts to enable the defendants to adequately respond. The court also noted that while repetition of allegations was an issue, it was not the sole ground for striking out the pleadings. The overlap between the plea of motivation and other specified allegations required careful attention to avoid redundancy and maintain clarity.
In conclusion, the court ordered that certain paragraphs of the plaintiff's pleadings be struck out due to their lack of precision and potential for prejudice. The plaintiff was given the opportunity to replead with more precise details, ensuring that any future allegations are clear and distinct.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
'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.