Wong v Aripin - [2011] WASC 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WONG -v- ARIPIN [2011] WASC 174

CORAM: KENNETH MARTIN J

HEARD: 14 JUNE 2011

DELIVERED : 22 JULY 2011

FILE NO/S: CIV 1550 of 2011

BETWEEN: LUAN MAY (MIMI) WONG
First Plaintiff
HOWARD SUGIARSO
Second Plaintiff
AND
LIAS ARIPIN
Defendant

Catchwords:

Defamation - Strike out - Imputations / Innuendos - True and false innuendos pleaded - Claim for aggravated damages - Injury to feelings by subsequent overseas statements by defendant - Whether permissible to raise

Legislation:

Nil

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr T Tobin QC & Mr M L Bennett
Second Plaintiff             :     Mr T Tobin QC & Mr M L Bennett
Defendant:     Mr J MacLaurin

Solicitors:

First Plaintiff                  :     Bennett & Co
Second Plaintiff             :     Bennett & Co
Defendant:     Hotchkin Hanly

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

Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47
Collins Stewart v Financial Times Ltd [No 2] [2005] EWHC 262 (QB)
David Syme & Co Ltd (Receiver & Manager Appointed) v Grey (1992) 38 FCR 303
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gumina v Williams (No 1) (1990) 3 WAR 342
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2002) 203 CLR 503
Kevin Clark t/a Elumina Iberica UK v Bain [2008] EWHC 2636 (QB)
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415
Phillips v Eyre (1870) LR 6 QB 1
Rath v Guardian [2008] EWHC 398 QB
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

KENNETH MARTIN J:

Overview

By chamber summons of 3 June 2011 the defendant seeks to strike out pars 10, 11 and 14.3 of the plaintiffs' statement of claim, on the basis those paragraphs fail to disclose any reasonable cause of action, alternatively are embarrassing and will prejudice or delay the fair trial of the action, contrary to O 20 r 19(1)(a) or (c) of the Rules of the Supreme Court 1971 (WA).
The defendant's application caused the plaintiffs to file an amended statement of claim on 13 June 2011. This pleading added a new par 10A. It also delivered some adjustments to existing par 11 by way of additional particularity, namely subpars 11.5 and 11.6. However, the defendant still challenges the new par 10A as defective. He contends that the recent adjustments and augmentations delivered under the amendments to the statement of claim fail to cure structural defects which remain.
This is a defamation action. The interlocutory challenges raised by the defendant are directed first against alleged imputations the plaintiffs assert arise, based upon spoken words allegedly uttered by the defendant at the Burswood Intercontinental Resort & Hotel (Burswood) reception on the morning of 9 June 2010. The defendant's challenges are made against the popular (false) innuendo as asserted by par 10, and against the legal (true) innuendos asserted by pars 10A and 11.
There is an unusual twist within the Burswood facts as regards the spoken words, in that they are contended to have been spoken by the defendant in a foreign language or dialect. Furthermore, the asserted extent of their publication on the morning of 9 June 2010 is limited to only one person, a Mr Johan Lensa, who it is said understood the language or dialect which was spoken by the defendant. It is alleged that the defamatory publication was then immediately republished by Mr Lensa to one other person present at the reception. Mr Agus Soegiarto is asserted to have had the first spoken words of the defendant repeated to him by Mr Lensa in Hokkien (a dialect of the Chinese language). Therefore, the full extent of publication and republication currently contended for as regards the defamatory publication is limited to only two persons, Mr Lensa and Mr Soegiarto.
However, the plaintiffs also seek aggravated damages on the basis that the substance of the defamatory publication is alleged to have been verbally repeated by the defendant on subsequent occasions in circumstances where those incidents took place wholly outside Australia.
Three instances of publications said to sustain aggravated damages are contended for, set out respectively in subpars 14.3.1, 14.3.2 and 14.3.5 of the amended statement of claim. These three subsequent publications are said to have occurred first in October 2010, then in or about November or December 2010, then finally by telephone from the defendant to Mr Lensa, who was then in Singapore, on 11 March 2011.
Only the March 2011 publication is said to have been made by the defendant to one of the original recipients of the defamatory publication at Burswood on 9 June 2010. These three publications are not pleaded as individual causes of action for defamation. They only augment the plaintiffs' existing damages claim based on what was said at Burswood.

The pleading

For the purpose of appreciating the strike out application, it is necessary to set out certain paragraphs of the amended statement of claim. The application was argued on the basis of the amended pleading, rather than the first statement of claim against which the strike out application had originally been framed.
I will therefore set out pars 1 through 12, then 14 and 15 of the amended statement of claim. During the course of argument, it was clarified that subpar 11.6 should be read as a reference to the plaintiffs repeating 'the particulars' to par 10A rather than the paragraph. The preface to par 14 was clarified as well, to be read as directed to a plea of aggravation as regards injury to the plaintiffs' feelings on the case for aggravated damages, but no wider. Argument proceeded on that basis.
The amended statement of claim reads:
1.The First Plaintiff is and was at all material times a founder and executive chairperson of the Golden Group of companies, being a group of proprietary limited companies that carry on and at all material times carried on the business of property investment and development in Western Australia, and in so doing attracting foreign investors from Indonesia to invest in the Golden Group.
2.The Second Plaintiff is and was at all material times a founder and president of the Golden Group of companies.
3.The Defendant is and was at all material times:
3.1an Indonesian property investor;
3.2a director of Astral Land Pty Ltd (ACN 110 458 798), being a company that carried on the business of property investment; and
3.3a former business associate of the First and Second Plaintiff who, in his own right and through Astral Land Pty Ltd, invested in the purchase and development of property in Western Australia through the Golden Group of companies.
4.On or about the morning of 9 June 2010, in the reception of the Burswood Intercontinental Resort & Hotel Perth, the Defendant falsely and maliciously uttered to Mr Johan Lensa (in either Hokkein, a dialect of the Chinese language or in Bahasa Indonesia, the national language spoken in Indonesia), who was then standing in close proximity to a business associate, Mr Agus Soegiarto, the following words of and concerning the Plaintiffs:
•'Lu Co Ha Mi Seng Lie Ti Kue Lai?'
•'Lu u Co Seng Lie Cam Mimi Wong Bo?'
•'Kalau Lu U Co Seng Lie Ka Mimi Wong Ai Cie Nya Siu Sim Cam le, Lu B Than Lui'.
(Defamatory Publication)
5.Mr Lensa speaks both Hokkein and Bahasa Indonesia fluently and understood the Defamatory Publication.
6.The following is a true and literal translation of the Defamatory Publication:
•'What business do you have here?'
•'Do you have any business with Mimi Wong?'
•'If you do, be careful of Mimi Wong, you will not benefit'.
7.Immediately thereafter, Mr Lensa repeated the Defamatory Publication to Mr Agus Soegiarto in Hokkein.
8.By the circumstances of the conversation, the Defendant intended that the Defamatory Publication should be re‑published by Mr Lensa to Mr Soegiarto.
9.Mr Soegiarto speaks Hokkein fluently and understood the Defamatory Publication.
10.In its natural and ordinary meaning, the Defendant's Defamatory Publication meant and was understood to mean the First Plaintiff is a business person who is not to be trusted.
10AAlternatively, by way of innuendo, the Defendant's Defamatory Publication meant and was understood to mean that the First Plaintiff is a business person who is dishonest and not to be trusted.
Particulars
To persons of Indonesian descent and upbringing conversant in Bahasa Indonesia and of the cultural class of which the Plaintiffs, the Defendant, Mr Lensa and Mr Soegiarto were members, words spoken which literally translate into English as 'be careful of Mimi Wong, you will not benefit' mean that the First Plaintiff is dishonest and not to be trusted.
11.By way of innuendo, the Defendant's Defamatory Publication meant and was understood to mean that each of the First and the Second Plaintiff is a business person who is not to be trusted.
Particulars
11.1The Golden Group of companies is a family business.
11.2The First and Second Plaintiffs are married.
11.3Together, the First and Second Plaintiff founded the Golden Group of companies more than 20 years ago.
11.4Since founding the Golden Group of companies, the First and Second Plaintiff have, together, operated the business.
11.5To persons of Indonesian descent and upbringing conversant in Bahasa Indonesia and of the cultural class of which the Plaintiffs, the Defendant, Mr Lensa and Mr Soegiarto were members, words spoken which literally translate into English as 'any business with Mimi Wong' mean and were understood to mean the First Plaintiff, her husband and her family who work in her business. In the context of the culture of Hokkein and Bahasa Indonesia speakers, an adverse reflection on the business reputation of one partner in a husband and wife business enterprise is understood to reflect in the same way on the other partner.
11.6The Plaintiffs repeat paragraph 10A herein.
12.The facts and matters set out in paragraphs 11.1 ‑ 11.6 above were known by each of Mr Lensa and Mr Soegiarto, who understood the Defamatory Publication to bear the meaning set out in paragraph 11 above.
…
14.The Defendant's publication of the Defamatory Publication was and his conduct has been improper, unjustifiable and lacking in bone [sic] fides, in a manner which has aggravated the hurt, damage and distress suffered by the Plaintiffs in that:
14.1the Defamatory Publication was published gratuitously;
14.2the Defendant's conduct was calculated to cause damage to the Plaintiffs in that:
14.2.1the Defamatory Publication was uttered to Mr Lensa, a prospective investor in the Golden Group of companies, at a time when he was in the reception of the Burswood Intercontinental Resort & Hotel Perth with Mr Soegiarto, an investor in the Golden Group of companies; and
14.2.2being an Indonesian property investor, the Defendant was acquainted with and was aware that Mr Lensa and Mr Soegiarto were also Indonesian property investors;
14.3the substance of the Defamatory Publication was repeated subsequently by the Defendant on numerous occasions; namely:
14.3.1in October 2010, the Defendant repeated the substance of the Defamatory Publication to business people at the Pemanthang Siantar group in Muara Karang, Jakarta, Indonesia;
14.3.2one evening, on or about November or December 2010, at Pluit Junction, Jakarta, Indonesia, the Defendant repeated the substance of the Defamatory Publication to Mr Stephen Maetanegara by falsely and maliciously uttering the following words (in Bahasa Indonesia and Hokkein), of and concerning the Plaintiffs:
•'Bahwa Mimi Wong dan Howard adalah penipu dan akan menggunakan lawyer dari Australia dan accountant dari Australia untuk mengaudit perkongsian Aripin juga mengatakan dengan suara lantang 'I lang (Mimi and Howard) hale cibai lang mencai choi tai ci kha hamang, wa ai sue (tanteit) ilang, co ilang kang kho'.
14.4.3Mr Maetanegara speaks Bahasa Indonesia and Hokkein fluently and understood the words set out at paragraph 14.3.2 above.
14.3.4The following is a true and literal translation of the words set out at paragraph 14.3.2 above:
•'Mimi Wong and Howard are fraudsters/cheaters.'
•'I will use Australian lawyers and accountants to sue them and audit the company.'
•'They are pussy/vagina people and motherfuckers.'
•'They do not know who they are dealing with.'
•'I will sue them and make them suffer.'
14.3.5In response to the Plaintiffs' Concerns Notice dated 11 March 2011 issued to the Defendant pursuant to section 14 of the Defamation Act 2005 (WA), on or about mid‑March 2011, the Defendant repeated the substance of the Defamatory Publication by telephoning Mr Johan Lensa (who was in Singapore at the time) and falsely and maliciously uttering the following words (in Hokkein) of and concerning the Plaintiffs:
•'I Lang Cia Gua.'
•'Gua Ko U Ce Nia Cei Lui Khi U Lang E Ui.'
•'Gua U Sui Liau i Lang Ko Khiam Gua Kui Ce.'
•'Gua Ka Lu Kong Liau Ai Sio Sim Ka mimi.'
14.3.6Mr Lensa speaks Hokkein fluently and understood the words set out at paragraph 14.3.5 above.
14.3.7The following is a true and literal translation of the words set out at paragraph 14.3.5 above:
•'They cheated me.'
•'They've still got my money.'
•'I've done a calculation and know what they owe me.'
•'Didn't I tell you to be careful of Mimi.'
15.By reason of the facts, matters and circumstances described in paragraph 14 above, the Plaintiffs claim aggravated damages against the Defendant.

Paragraph 10: False innuendo upon an ordinary meaning of words spoken at Burswood

The first arena of conflict is the defendant's attack on par 10. Here the plea contends that the defamatory publication carries an imputation in its natural and ordinary meaning (as regards the first plaintiff only) that she 'is a business person who is not to be trusted'.
As regards any attack against imputations, it is necessary to remember that a party, on an interlocutory challenge of this kind, needs to demonstrate that the averment contended for is essentially unarguable as a cause of action. The test has been formulated in various ways over the years. Manifestly groundless or clearly untenable is a formulation sometimes used, see Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 675, referred to by Commissioner Pullin (as he then was) in Gumina v Williams (No 1) (1990) 3 WAR 342. The threshold as explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 is also commonly invoked on strike out applications such as these. The unarguability assessment threshold which must be surmounted by an applicant in order to strike out an imputation as failing to disclose an arguable cause of action, is both cautiously applied and high.
Applying that standard, I am nevertheless of the view that, by reference to the translation into English of the defamatory publication as set out in par 6, the argued natural and ordinary meaning imputation contended for, cannot be sustained. Viewed at the threshold of potential arguability, it seems to me that components of a translation to English which is, 'if you do, be careful of Mimi Wong, you will not benefit', merely on the natural and ordinary meaning of such English words, cannot sensibly equate to an assertion as regards the trustworthiness of Mimi Wong. Reference to 'be careful' does not necessarily equate to a trustworthiness issue. Reference to 'benefit' seems to be a reference to the outcome or conclusion, resulting from a potential business dealing. The fact that the communication might be assessed to be a warning, i.e. 'be careful', does not, I think, assist the plaintiffs' contention that these words, by themselves, arguably carry a perjorative connotation towards the first plaintiff as a business person who is not to be trusted. The words could, in my view, be assessed, in their natural and ordinary meaning, as bearing upon the first plaintiff being unsuccessful or unlucky in her business outcomes.
The pleaded context of course as regards Ms Wong is as someone who carries on a business of property investment and development in Western Australia and who, in the course of so doing, seeks to attract foreign investors from Indonesia to invest in her corporate group, the Golden Group of companies. That does not assist the meaning contended for by the plaintiffs. On my analysis, the asserted popular (false) innuendo as regards the first plaintiff being a business person who is 'not to be trusted' is unarguable without more. It needs something else to focus or direct the publication to the issue of trust. Accordingly, the defendant's attack against par 10, based on the ordinary meaning of the words alone, succeeds.
The defendant also raised an alternative argument based on embarrassment which, given my conclusion above, is not strictly necessary to pursue. This contention was that the imputation in par 10 of 'business person who is not to be trusted' had been formulated in the passive. Accordingly it was said to be too imprecise or was insufficiently distilled in order to meet the required standard of precision, namely capturing the pure, single and final essence of the disparaging sting in a defamatory imputation: Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, 15 (Stephen J); Taylor v Jecks (1993) 10 WAR 309, 319 (Anderson J). The defendant challenged the par 10 imputation on the basis that it ought be framed such as to reflect a perjorative character trait such as (the first plaintiff) 'is a business person who is untrustworthy'. I reject this alternate challenge as a matter of principle.
It is not uncommon for defendants in defamation actions to seek to push plaintiffs towards pleading a wider perjorative character deficiency as a tactical exercise designed to open up scope at trial for a justification defence, sustained by reference to unrelated historical events, carefully assembled to support proof of the negative trait. In the vernacular this strategy is sometimes referred to as 'tipping a bucket'. On my assessment, there is nothing conceptually wrong with a passive formulation, provided it can be fairly found in the words of the publication concerned.
Before leaving par 10, I would observe upon one further matter which presents as unique to the present pleading. The defamatory publication, spoken verbally, is said in par 4 to have been spoken at Burswood in either Hokkein or Bahasa. A following contention is that Mr Lensa speaks both Hokkein and Bahasa fluently. It is then said that Mr Lensa, somewhat uniquely, would have understood the words uttered by the defendant. Paragraph 6 then pleads the contended literal translation of the Hokkein or Bahasa into the English language. It is further contended that a republication to Mr Soegiarto by Mr Lensa occurred in Hokkein, that Mr Soegiarto speaks Hokkein fluently, so therefore that Mr Soegiarto also understood the defamatory publication, once republished to him by Mr Lensa.
An utterance at Burswood that is made in Hokkein or Bahasa of a defamatory publication needs, I think, something more, in order for the utterance to be capable of delivering a natural and ordinary meaning as contended for, in the English language.

In other words, the averment at par 10 would not, on my analysis, carry a natural or ordinary meaning from the words spoken. The words require further components of fact and insight by way of knowledge of the Hokkein or Bahasa languages or dialects by a person or persons hearing the Burswood utterance or its republication. Accordingly, the character of what is contended for is, on analysis, properly assessed as a true or legal innuendo. That is in fact how the same words are formulated under the amendment carried into the amended statement of claim as par 10A, to which I turn.

Paragraph 10A: True innuendo as regards only the first plaintiff

It will be seen immediately that the par 10A pleaded innuendo is similar in formulation to par 10, in that it contains the phrase 'not to be trusted'. However, the imputation contended for is wider, encompassing the plea that the first plaintiff is 'a business person who is dishonest and not to be trusted'. That contention as a matter of formulation rolls together two distinct disparaging imputations and so, is embarrassing: see Taylor v Jecks (320 ‑ 321).
Argument before me proceeded on the basis that if conflation was a difficulty, as I assess it to be, then those distinct imputations could be read and assessed as being in the alternative by a single amendment to that end. I will approach the matter more substantially on that theoretical basis, effectively now reading par 10A as a contention in the alternative that the defamatory publication was understood to mean that the first plaintiff is a business person who is:
(a)not to be trusted;
(b)alternatively, is dishonest.
Particulars to par 10A meet my concern, earlier expressed, about it being necessary to specify the fact that the person(s) overhearing the utterance made in a foreign language or dialect in Australia can actually understand that foreign language or dialect. The particulars to par 10A address that local intelligibility requirement. They also contend that, based upon Indonesian descent and upbringing, with the particular cultural class of which the plaintiffs, Mr Lensa and Mr Soegiarto are both members, that words translated into English as 'be careful of Mimi Wong, you will not benefit' mean that the first plaintiff is dishonest and not to be trusted. In my assessment the formulation as a matter of concept for a true (legal) innuendo (as to which see Gatley on Libel and Slander (11th ed) [3.19] and [3.20]), is satisfactory. At [3.19] Gatley says:
Where, however, the defamatory meaning only arises because of extrinsic facts which are known to the recipients there is said to be an 'innuendo'. … the claimant must not only identify in his particulars of claim the defamatory meaning which he contends the words convey (for he must now do that in all cases) but also identify the relevant extrinsic facts. … A 'true' or 'legal' innuendo in this sense only exists where the extended meaning arises from facts passing beyond general knowledge.
The defendant, however, still criticises the superficial content in the particulars provided as regards an observable vagueness in bare assertions as to descent (Indonesian upbringing and cultural class). There is merit in that criticism. Amplification as to the matters of descent, upbringing and class is clearly required. Such amplification should be provided by proper particulars. Subject to that being done, it seems to me that as a matter of concept, par 10A could then be allowed.

Paragraph 11: True innuendo as regards both first and second plaintiffs

Paragraph 11 in its first iteration was challenged on the basis that it contained nothing to support any possible perjorative imputation as against the second plaintiff.
That criticism then drew forth the amendment and a reference to 'each of the first and the second plaintiff'. Furthermore, subpars 11.5 and 11.6 were added as regards the assertion that an adverse reflection upon the business reputation of one partner of a husband and wife business enterprise is understood to adversely reflect, in the same way, upon the other partner.
On that amended basis, it is asserted that subpar 11.5 now delivers the required ingredient of linkage as regards the second plaintiff, Mr Sugiarso. Furthermore, subpar 11.6 is, as I have pointed out, to be read as repeating only particulars provided to par 10A, as regards the defamatory publication's words 'be careful of Mimi Wong, you will not benefit' concerning dishonesty and trust.
It will be noted that the par 11 imputation, as regards both plaintiffs, is that each of them is 'a business person who is not to be trusted'. That of course is one of the innuendos contended for under the alternative pleading under par 10A, solely as regards the first plaintiff. For the second plaintiff however, it is new.
On my assessment, the imputation in formulation is sufficiently arguable, as a matter of concept, if viewed against the matters of fact asserted under subpars 11.5 and 11.6. Once again however, the lack of detailed particularity, which already afflicts the particulars provided to par 10A as regards descent, upbringing, and cultural class, is apparent. Again, this legitimate criticism would be capable of being addressed by further particulars.
I recognise that both pars 10A and the particulars provided under par 11.5, emerged late. They were recent amendments to the statement of claim. Therefore there did not arise the usual scope for a request for particulars - when otherwise that course by request would have been appropriate before an institution of a strike out application. The application had already been filed.
In the particular context of subpar 11.5, viewed alone, bare reference to 'context of the culture of Hokkein and Bahasa Indonesia speakers' is lacking and requires a more detailed and verifiable elaboration. Otherwise a bare assertion of the 'culture' concerned delivering a uniformly adverse reflection upon partners in a husband and wife run business enterprise, is simply announced at the level of bare assertion or conclusion, rather than by the required platform of adequate extrinsic facts. Subject to that consideration however, par 11 is sustainable in concept and will not be struck out as unarguable.

Claim for aggravated damages by reference to conduct occurring outside Western Australia, subsequent to the defamatory publication

The plaintiffs have made it clear in this application that the averments in respect of aggravated damages:
(a)relate only to the asserted injury to the feelings of the plaintiffs; and
(b)are not in any way to be viewed as separate or distinct causes of action extending beyond the primary cause of action arising out of the alleged utterances by the defendant at Burswood on 9 June 2010.
Reference should be made to the Defamation Act 2005 (WA), particularly s 35(2), referring to a court's satisfaction that 'circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages'. Then, under s 36, a court in awarding damages for defamation is to disregard the malice or other state of mind of the defendant at the time of publication of the defamatory matter or at any other time, 'except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff'. By s 37, a former entitlement in defamation allowing plaintiffs to pursue exemplary or punitive damages against a defendant publisher is abolished. The term 'aggravated damages' is not defined in the Defamation Act, thereby occasioning a need for an understanding of that term in the common law.
A level of unique complexity in the present aggravation pleading under par 14 is occasioned by the fact that each of the three incidents raised, as referred to under par 14.3, concern the defendant's alleged conduct overseas, either in Indonesia or in Singapore.
The defendant invokes on this challenge observations by Gummow J made in the Federal Court in David Syme & Co Ltd (Receiver & Manager Appointed) v Grey (1992) 38 FCR 303. That was a case decided some time ago. The relevant observations relied upon are at between 322 and 327 of the report in a section headed 'Toomey v Mirror Newspapers Ltd'.
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 is a decision of Hunt J in the New South Wales Supreme Court. It was decided at a time when the double actionability rule in Phillips v Eyre (1870) LR 6 QB 1 prevailed as part of Australian law. That of course is no longer the case. The defendant particularly relied upon these observations by Gummow J at 327 in David Syme & Co:
Alternatively, the decision may be understood, as the respondent would have it, as authority for the courts of the forum to recognise and enforce extraterritorial rights arising from the commission of civil wrongs outside the jurisdiction (something to which the rule in Phillips v Eyre is directed) by awarding damages for harm to reputation sustained by publication elsewhere, regardless of whether that injury was wrongful there. If that be the correct reading of it, then, in my view, the decision should not be followed.
The facts underlying David Syme & Co concerned arguments over reliance upon publications outside the ACT going only as to damages, rather than being raised as separate causes of action. That was the argument put in the alternative to defend the plea. The alternative plea appeared to be inconsistent with the indorsement on the writ in that case, which sought damages for publication of defamatory material not only in the ACT but 'throughout Australia'.
David Syme & Co illustrates the obvious need for a court to protect a defendant against scenarios where a plaintiff facing difficulties with an unsupportable extra‑territorial cause of action then seeks by the 'back door', to achieve the same outcomes by attempting to convert the defective plea away from being a substantive claim, into a plea as to damages being aggravated.
In Kevin Clark t/a Elumina Iberica UK v Bain [2008] EWHC 2636 (QB) Tugendhat J made an observation to that end at [66] of his reasons. His Honour said:
It would be surprising if a claimant, after being refused leave to rely on a cause of action in respect of a publication outside the jurisdiction could simply move his plea from the substantive claim to the part of the pleading dealing with damages. That is what the claimant seeks to do here.
In David Syme & Co that stigma tainted the basis (raised in the alternative) upon which the plaintiff professed that it sought to proceed, 'only as to damages'.
In Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47, McCallum J recently observed upon the current state of the law in the aftermath of John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2002) 203 CLR 503. His Honour assessed its implications for the aspect of Toomey which had survived David Syme & Co Ltd v Grey. McCallum J said at [14] ‑ [15]:
Mr McHugh accepted, as submitted by Mr Evatt, that for many years in this State, publication outside the State was treated as being capable of going only to damages rather than as a separate cause of action. Thus, in Toomey v Mirror Newspapers Limited (1985) 1 NSWLR 173 Hunt J said (at 184F):
'In my view, the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere.'
Mr McHugh submitted, correctly in my view, that since the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2002) 203 CLR 503, that can no longer be regarded as a permissible approach. The correctness of the principle stated by Hunt J in Toomey (set out above) was considered by Gummow J in David Syme & Co Limited v Grey (1992) 38 FCR 303 at 322-327.
McCallum J then set out the passage from Gummow J's reasons in David Syme v Grey to which I have referred as regards the aspect of that decision that 'should not be followed', and continued [16] ‑ [18]:
As observed by Mr McHugh, the reasoning in the joint judgment in Pfeiffer implicitly approves that as a correct statement of principle. Pfeiffer holds that, in respect of a tort alleged to have been committed in a State or Territory other than that in which proceedings are brought, the law to be applied by the Court hearing the claim governing all questions of substance is the law in which the tort was committed: at [120].
It follows, in my view, that in respect of a publication outside New South Wales, this Court cannot award damages for harm to reputation 'regardless of whether that injury was wrongful there'. The defendant must have an opportunity to defend the claim in accordance with the law of that jurisdiction, which includes not only the common law of Australia but also any applicable legislation of the State or Territory concerned.
Accordingly, I do not think that it is open to the plaintiff to rely on publication outside New South Wales as going only to damages. …
(my emphasis in italics)
It is necessary to repeat that here, the plaintiffs seek to rely upon the par 14.3 incidents on the basis that they go not towards their reputations, but rather towards injury to their feelings. In that context, it is necessary to say something more of the principles concerning aggravated damages. I do so on the basis that I essentially accept the plaintiffs' submission that David Syme & Co does not lock the plaintiffs out on this issue (or at least does not lock them out at the interlocutory stage of potential arguability, which is my current concern). Furthermore, I accept the plaintiffs' submission that these pleas must be assessed in this application on the basis that this is not a case of a plaintiff who faces difficulties pursuing an extra‑territorial cause of action but who seeks to get around problems by asserting that the foreign publication goes only to damages, as regards a tort asserted to be perfected within the local jurisdiction. The par 14.3 pleas have only ever been raised here, on my assessment, as assertions towards aggravation of damages.

Aggravated damages

I turn then to aggravated damages in principle. It is convenient to set out some propositions accepted as common ground by Tugendhat J in Kevin Clark at [41(i)] to [41(v)] and which, on my analysis, are broadly applicable also to claims for aggravated damages under the common law of Australia, as modified by the uniform Defamation Acts. The five common ground propositions found at [41] were:
(i)In assessing damages the court can take into account the distress hurt and humiliation the defamatory publication has caused to the claimant, in addition to the injury to his reputation. Evidence of matter tending to establish malice on the part of the defendant is, as a general rule, admissible to support a claim for aggravated damages. So, to establish a malicious motive in the mind of the defendant, evidence may be given that the defendant has published other defamatory words about the claimant, whether such words were or were not connected with the subject matter of the action, and even if publication took place subsequent to the publication giving rise to the action. This principle was established in Pearson v Lemaitre [1845] 5 M & Gr 700, 719 and is discussed in Gatley on Libel and Slander 10th ed para 32.48, 32.51.
(ii)It is not only malice on the part of the publisher that can be relied upon in aggravation of damage. In Rooks v Barnard [1964] AC 1129, 1121 Lord Devlin said:
'There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride.'
In McCarey v Associated Newspapers (No 2) [1965] 2 QB 86, 104 ‑ 5 Pearson LJ said that:
'if there has been any kind of high‑handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff's pride and self‑confidence, these are proper elements to be taken into account in a case where damages are at large.'
In Sutcliffe v Pressdram Ltd [1991] 1 QB 153, 184D, Nourse LJ listed the conduct that might support a claim for aggravated damages as including '… a repetition of the libel, conduct calculated to deter the claimant from proceeding, … persecution of the plaintiff by other means'.
(iii)If the evidence also establishes another cause of action, then the jury must be cautioned against giving damages in respect of that cause of action: Pearson at p 720.
(iv)If the evidence also establishes another cause of action, then the defendant is entitled to plead matters which would afford him a defence to that cause of action, if it had been pleaded as a separate cause of action, including issues of meaning: Collins Stewart v FT [2006] EMLR 100, para [27].
(v)Notwithstanding the admissibility of such evidence, the court may, in the exercise of its case management powers, determine to exclude such evidence.
These uncontroversial propositions from Kevin Clark say nothing yet about a situation where the subsequent conduct arises from statements wholly made out of the local jurisdiction. But that was the situation which Tugendhat J was confronting in Kevin Clark. His Honour there considered the rival submissions of counsel on this point at between [62] ‑ [67]. In the end, he did not need to finally resolve the issue. Tugendhat J noted that counsel for the plaintiff had submitted, in his Honour's view with some force, that, 'it matters little whether the publication relied on in aggravation of damages occurred within the jurisdiction or outside it, provided the claimant has become aware of it and suffered as a result' [63].
Tugendhat J then observed at [64] as to the submission, that:
If the claim is properly brought within the jurisdiction, and if injury to feelings is suffered within the jurisdiction, then so far as the cases on aggravated damages are concerned, there is no reason to exclude aggravating conduct that occurred outside the jurisdiction. The cases on aggravated damages do not touch on that point.
Yet, Tugendhat J in Kevin Clark seemed in the end to prefer the rival submission from counsel for the defendant. Referring to an earlier decision of Gray J in Collins Stewart v Financial Times Ltd [No 2] [2005] EWHC 262 (QB), Tugendhat J observed, 'reliance on publications in aggravation of damages which would also give separate causes of action creates difficulties'. It was in this context that Tugendhat J then made his concluding observations as to a 'further difficulty' that I have already referred to, as regards a plaintiff shifting ground from a substantive claim, so as to a claim only for damages, observing at [66], 'that is what the Claimant seeks to do here'.
The cited observations from Gray J in Collins Stewart as regards statements which would constitute separate causes of action can be traced back to earlier observations under the common ground propositions at [41(iii)], [41(iv)] and [41(v)]. In Collins Stewart, Gray J had been influenced by case management considerations: see [26], [27] and [34] of the reasons in Collins Stewart, cited by Tugendhat J at [51]. Tugendhat J also referred to his own earlier case management observations in Rath v Guardian [2008] EWHC 398 QB [13(iv)].
As a matter of practicality, it is easy to see how a plaintiff's attempted invocation of foreign publications, in a context of making a claim for aggravated damages, might rapidly escalate in terms of increasing significantly the dimensions and magnitude of a trial, not to mention escalating the expense associated with a need for overseas witnesses, translators or the like.
Real case management considerations do loom large once such foreign evidence is foreshadowed at a defamation trial. Considerations of proportionality bear heavily upon case management decisions in Western Australia. As may be seen in the overall pleaded context here, the potential dimensions of a claim for aggravated damages, save as regards the limited alleged publication to Mr Lensa in Singapore, have potential to be internationally expansive and so, more difficult to manage.

Such publications, assessed in their own right, may also constitute separate causes of action as a foreign tort committed outside the jurisdiction of Western Australia. Moreover, the par 14.3 utterances look on their face to be stronger than the initial defamatory publication in terms of potential damage to the plaintiffs' reputations. The court needs to be alert to see that such allegations are controlled within proper bounds to ensure that a trial is not derailed or manipulated so as to become inordinately expensive for a party to participate in.
Viewed at a stage of bare arguability on a strike out application, I am not prepared to summarily reject in concept the plaintiffs' pleas seeking aggravated damages if they are assessed as being limited (as is accepted) to claims based upon a capacity of the extra territorial incidents to bear upon hurt to feelings.
In Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415, McCallum J observed at [12] that in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, McColl JA at [126] had doubted (without deciding) whether Gummow J's analysis in David Syme v Grey had derogated from acceptance of the principle that republications could be sued upon 'as damages'. McCallum J observed that, '[T]hat is a question for another day'.
I propose to proceed on the basis that a claim for aggravated damages is arguably open by reference to words spoken out of Western Australia, at least as a matter of concept. I proceed to consider from that starting point the pleas in par 14.3 invoking aggravated damages.

Paragraph 14.3

The attack against par 14 essentially concerns the averments in subpars 14.3.1, 14.3.2 and 14.3.5. Each of the incidents concerned in subpars 14.3.1, 14.3.2 and 14.3.5 relates to asserted conduct as against the defendant after June 2010 (the time of the defamatory publication). Each also raises overseas conduct, in circumstances where the original defamatory publication was to Mr Lensa, then allegedly republished to Mr Soegiarto at Burswood.
At the argument, I was asked by the plaintiffs to assume that their contention as regards hurt to the feelings of the plaintiffs was on the basis that each of the par 14.3 overseas utterances seen under pars 14.3.1, 14.3.2 and 14.3.5 had been relayed back to the plaintiffs. If that is so, as regards any such incident, it seems to me that the relayed back to them contention, is a material fact and should be pleaded expressly. That global defect observation aside, it still seems to me that subpars 14.3.1 and 14.3.2 (read with 14.3.3) should be struck out, as I will explain.
As regards par 14.3.1, it will be seen that the assertion is that the defendant repeated the substance of the defamatory publication. The words actually used constituting an alleged repetition of the substance of the defamatory publication (at Burswood) are not given. The occasion seems to have concerned a group of unnamed business people at Muara Karang in Jakarta, Indonesia. This incident is not a case of the substance of the defamatory publication being put once again to Mr Lensa, or to Mr Soegiarto. The incident appears to be an alleged utterance to wholly unnamed overseas business people. There is nothing to link this incident to the conduct at Burswood. Nor is there any plea that the business people at Muara Karang applied an English translation to what was said, or reached any interpretation akin to any of the innuendos contended for earlier under pars 10A or 11 of the pleading. The par 14.3.1 incident seems to be a stand alone utterance outside Australia, having no relationship to the cause or causes of action in defamation which the plaintiffs hold arising out of the defendant's alleged words that reached two people at Burswood on 9 June 2010. Whether the alleged utterances as a matter of Indonesian law could give rise to causes of action under that legal system raises distinct and unrelated considerations.
As regards subpar 14.3.2 and 14.3.3, reference is once again made to the defendant allegedly repeating 'the substance of the Defamatory Publication'. This utterance is said to have occurred one evening on or about November or December 2010 at Pluit Junction in Jakarta, Indonesia. The alleged utterance by the defendant is said to have been made only to one person, Mr Stephen Maetanegara, with the Indonesian utterance seen at par 14.3.2 as alleged, in Bahasa and Hokkein. The English translation of the words, said to be a true and literal translation, is set out in subpar 14.3.4 under five bullet points.
A literal translation into English of words allegedly spoken by the defendant to Mr Maetanegara look to be, on their face, far more perjorative than the English translation of the defamatory publication of 9 June 2010 at Burswood. It is then difficult to see how such an utterance to Mr Maetanegara, in Indonesia, could aggravate the Burswood publication. The content of what was allegedly said (translated into English) seems to raise insults, abuse and some explicit and perjorative words (see first dot point). It seems to be stand alone in its effects, if any, against the plaintiffs. The utterance is only to one person not present at Burswood on 9 June 2010. This utterance cannot be viewed as an aggravation of the Burswood cause of action. However, it also seems to me that the utterance, if actionable, would be actionable as a discrete wrong, pursued under Indonesian law. Accordingly, pars 14.3.2, 14.3.3 and 14.3.4 should all be struck out.
The last asserted aggravation under par 14.3.5 is by way of a telephone call to Mr Lensa. There is on that basis at least a link between a person who heard the Burswood publication and the subsequent phone call incident of mid March 2011. Any criticism as to the words then spoken not being given (as opposed to the substance of the defamatory publication merely being repeated) is addressed in the four dot points recording what was allegedly said in Hokkein to Mr Lensa, on the basis that such words repeat the substance of the Burswood publication to Mr Lensa, who was in Singapore when he took this phone call from the defendant.
It is not stated in subpar 14.3.5 where it is contended the defendant was telephoning from, whilst he spoke to Mr Lensa on this occasion. However, it ought not be assumed, upon par 3 of the statement of claim, that the defendant was in Western Australia. The defendant is referred to as an Indonesian property investor and former business associate of the plaintiffs.
The remaining concern as regards subpar 14.3.7 emanates from the fact that the first three dot points seem to raise the personal grievances of the defendant, in terms of his own dealings, as regards what he lost, or was owed by the plaintiffs. Only the last dot point of the English translation, 'Didn't I tell you to be careful of Mimi', can arguably be said to render the content of this telephone call a matter which is possibly linked to the Burswood publication. However, the translation from Hokkein to 'Didn't I tell you to be careful of Mimi' is sufficient to provide arguable linkage, as regards the three earlier dot points concerning the defendant's own position, to his financial losses in dealings with the plaintiffs.
In reaching this view, I take into account, from a case management and evidentiary perspective at a trial, the relatively limited scope of the receipt of one telephone call to Mr Lensa. Mr Lensa is already a likely witness at a trial. Viewed at the point of interlocutory arguability, subpars 14.3.5, 14.3.6 and 14.3.7 are in concept sufficiently linked to the Burswood publication and to one of the two relevant persons at Burswood. It may stand therefore, as an arguable potential aggravation in the way of further hurt to the feelings of both plaintiffs (being viewed, as regards the second plaintiff, on the basis of the extrinsic facts found under par 11.5, once better particularised).
As Mr Lensa is one of the original recipients of the defamatory publication, the conceptual difficulty I identified at the outset as regards the need for a plea of material facts explaining how words spoken were relayed back to the plaintiffs, does not arise.
For these reasons I would strike out par 10. I would also strike out the precatory words 'on numerous occasions' and as well, subpars 14.3.1, 14.3.2, 14.3.3 and 14.3.4.
As regards par 10A, the imputations contended for as true innuendos should be separated. Proper particulars to par 10A need to be provided. Likewise, there is a need for amplification, by proper particulars of subpar 11.5. Paragraph 11.6 needs a correction to have it reflect how I have assessed it on this application, namely that, 'The plaintiffs repeat the particulars to paragraph 10A herein'.
As regards costs, there has been a reasonable measure of success and failure on both sides in this application. The recent amendments to the statement of claim, particularly to par 11, redressed what was otherwise a conceptually vulnerable scenario, as regards a cause of action for the second plaintiff.
In the circumstances, my prima facie view is that the costs of the application should lie in the overall cause of this defamation action. The plaintiffs should bring in a re‑amended statement of claim in line with these reasons and carrying the further particularity that I have indicated is required, within 21 days.