Cooper v Hamilton Pharmacy 2011 Limited
[2016] NZHC 437
•14 March 2016
IN THE HIGH COURT OF NEW ZEALAND
TAURANGA REGISTRY
CIV-2015-470-7
[2016] NZHC 437
UNDER the Defamation Act 1992 BETWEEN
SIMON COOPER
Plaintiff
AND
HAMILTON PHARMACY 2011 LIMITED
First Defendant
GRAHAM BURNETT
Second DefendantPAPAMOA PINES PHARMACY LIMITED
Third Defendant
BROOKFIELD PHARMACY LIMITED
Fourth DefendantELISABETH KATHLEEN CLARE
Fifth DefendantANDREA CATHERINE COOMBES
Sixth Defendant
Hearing: 8 March 2016 Appearances:
T Braun and M Brady for Plaintiff A Darroch for Defendants
Judgment:
14 March 2016
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 14 March 2016 at 4:30pm
Pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
COOPER v HAMILTON PHARMACY 2011 LIMITED [2016] NZHC 437 [14 March 2016]
Solicitors:
Whitfield Braun, Hamilton, for Plaintiff
Darroch Forrest Lawyers, Wellington, for Defendants
[1] Mr Cooper worked as pharmacist for Hamilton Pharmacy 2011 Ltd from January 2013 to June 2014. Mr Burnett, Ms Clare, and Ms Coombes, are all directors of Hamilton Pharmacy 2011 Ltd. Papamoa Pines Pharmacy Ltd and Brookfield Pharmacy Ltd operate pharmacies at Papamoa and Brookfield respectively. Mr Cooper sues the defendants for defamation and injurious falsehood.
[2] The defendants apply for orders for Mr Cooper to provide further and better particulars of oral defamation allegations and for further discovery.
Particulars of oral defamation
[3]The pleaded defamatory statements in the latest statement of claim are:
9In or about June 2014 the fifth defendant, with the actual or ostensible authority of the first defendant, advised an employee of the first defendant, Courtney Denise Strong, that the plaintiff had stolen bankings from the first defendant.
11In or about July 2014 the second defendant, with the actual or ostensible authority of the first defendant, telephoned or spoke to other pharmacists in the Waikato/Bay of Plenty area and advised them that:
(a)The plaintiff was caught for the theft of banking at work;
(b)The plaintiff consumed alcohol while on duty as a pharmacist;
(c)The plaintiff “date-raped” a nurse;
(d)The plaintiff used amphetamines/methamphetamines and had tested positive for methamphetamine; and
(e)The plaintiff engaged in sexual intercourse with another person at the premises of the first defendant.
12In the week commencing 21 July 2014 the sixth defendant, with the actual or ostensible authority of the first defendant, advised Julie Bunn, the director of South City Health Pharmacy 2012 Ltd, not to employ the plaintiff as:
(a)The plaintiff had stolen banking from the first defendant; and
(b)The plaintiff “date-raped” a nurse.
13On or about 24 July 2014 the second defendant, with the actual or ostensible authority of the first defendant, sent a facsimile to the fourth defendant which stated that:
(a)The plaintiff was caught for theft of banking;
(b)The plaintiff was drinking cider while on duty as a pharmacist;
(c)The plaintiff possibly stole drugs for personal sale; and
(d)The plaintiff was sacked from the second defendant.
17In or about August 2014 the second defendant with the actual or ostensible authority of the first defendant spoke to Dr Nicholas Binns and read him the complaint he made to the Pharmacy Council.
18The complaint to the Pharmacy Council included the following statements, inter alia:
a The second defendant was concerned that:
i The plaintiff was “drinking alcoholic Cider when on duty during working hours”;
iiThe plaintiff had committed “theft of daily banking”,
iii There was substantial evidence from medical professional that indicate the elicit use of prescription drugs”.
19On or about 1 November 2014 the second defendant, with the actual or ostensible authority of the second defendant, spoke to Byron Baker and advised him that:
iThe plaintiff had been involved in sexual misconduct;
iiThe plaintiff was a thief;
iiiThe plaintiff used illegal drugs; and
ivThe plaintiff had stolen drugs from the first defendant.
[4]The defendants’ responses to the alleged defamations are:
1As to paragraph 9, they admit that the first defendant spoke to Ms Strong and obtained a statement from her but otherwise deny the allegations.
2As to paragraph 11, they deny the allegation entirely.
3As to paragraph 12, they admit that the sixth defendant had a discussion with Julie Bunn, which included comments about the plaintiff, but otherwise deny the allegation.
4As to paragraph 13, the second defendant sent the fax to the fourth defendant, which contained the statement pleaded.
5As to paragraph 17, the second defendant spoke to Dr Binns about the notification he had made to the Pharmacy Council but otherwise denied the allegation.
6As to paragraph 19, they admit that the second defendant spoke to Mr Baker but otherwise deny the allegation.
They also raise affirmative defences of qualified privilege, truth and honest opinion. In relation to the complaint to the Pharmacy Council, the defendants rely on a statutory immunity under s 34(4) of the Health Professionals Competence Assurance Act 2003.
[5] For the oral defamations in paragraphs 9, 11, 12 and 19 of the statement of claim the defendants require the plaintiff to state the actual words alleged to defame him and further, in relation to paragraph 11, to provide the names of the pharmacists the second defendant is alleged to have telephoned in the Hamilton area and, in relation to each pharmacist, when it is alleged that the second defendant made the call.
[6] The defendants’ application that Mr Cooper plead the actual words alleged to have defamed him is based on long-established authority that the actual words spoken must be set out verbatim “in order that the defendant may know the certainty of the charge, and may be able to shape his defence.”1 There is consistent New Zealand authority to that effect: Kerr v Haydon, Leigh v Attorney-General and Dorbu v Cooke.2
1 Cook v Cox (18140 3 N & S 110 at 113.
2 Kerr v Haydon [1981] 1 NZLR 449 (CA), Leigh v Attorney-General [2011] 1 NZLR 148 (CA) at [85]-[86] (The Supreme Court’s decision on appeal, Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 did not address this question) and Dorbu v Cooke, HC Auckland, CIV-2008- 484-5222, 30 April 2009.
Under this approach, a plaintiff may not plead that the defendants used words with such-and-such an effect or rely on the alleged substance of communication.
[7] While the pleading rule is strict, if it is found that the plaintiff does not prove the words pleaded but that the words were to the same effect, such variation can be accommodated at trial. In Tournier v National Provincial Bank, Atkin LJ said:3
It is also, I think, clear that the plaintiff was entitled to put before the jury his case that the words proved, though not the very words pleaded, were words substantially to the same effect. Whether this be done by amending the pleading, by framing the question to the jury so as to raise the point, or by directing the jury that the words pleaded would be proved by proof of words substantially to the same effect, seems to me immaterial. No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established.
[8]Similarly in Jennings v Buchanan, the Privy Council said:4
Where an oral statement is complained of, it is rarely possible (in the absence of a recording, a transcript or a very careful note) for a plaintiff to establish the precise words used by the defendant. But the law does not demand a level of precision which is unattainable in practice. The plaintiff must plead the words complained of, but it is enough if the tribunal of fact is satisfied that those words accurately express the substance of what was said.
[9] Here we are not concerned with the adequacy of the plaintiff’s proof of the defamatory statements, but with the adequacy of the pleading.
[10] While the argument was not put this way, the defendants’ complaint is that the plaintiff pleaded the alleged defamatory statements in indirect speech rather than direct speech. Only in paragraph 18 are words quoted. In my judgment, so long as a plaintiff sets out the alleged defamatory statements, it does not matter whether he or she does so by direct or indirect speech. So far as pleading requirements are concerned, there is no difference between:
(a)The defendant told the publishee that the plaintiff stole money;
3 Tournier v National Provincial Bank [1924] 1 KB 461(CA) at 487.
4 Jennings v Buchanan [2005] 2 NZLR 577 (PC) at [5].
and
(b)The defendant said to the publishee, “The plaintiff stole money.”
In both cases, the pleading informs the defendant of the actual words he or she is alleged to have stated. The defendant cannot complain that he or she is not able to shape a defence. That point is shown by the plaintiff’s pleading of the written defamation in paragraph 13 of the statement of claim. While indirect speech is used, the defendants admit that the second defendant published the words in the pleading. They were still able to formulate defences.
Paragraph 9
[11] The defendants’ complaint in relation to paragraph 9 of the statement of claim is that it does not accurately state the words alleged to have been spoken by Ms Clare. Mr Cooper has relied on the transcript of an interview apparently part of a Pharmacy Council investigation. A pharmacy technician, Ms Courtney Strong, is quoted as saying what she had been told by Ms Clare. It appears from the transcript that Ms Clare had informed Ms Strong of a statement made by another person, identified as “Sarah”,
“that she thought, well, Sarah told her, that Sarah had like stolen money, and that Simon had as well …”
[12] There is a discrepancy between “stolen money” used in the transcript and “stolen bankings” in the pleading. Further, the pleading does not show that the defamatory statement purports to be the assertion of some other person concerning Mr Cooper. A re-publication of someone else’s defamatory statement may be actionable, but the case law is clear that any such re-publication needs to be pleaded expressly.5 These cases show that the law considers there to be a difference in substance between making an original defamatory statement about a person and repeating someone else’s defamatory statement about that person. This technical rule has not been overruled. It may be ripe for review, but this application is not the appropriate occasion to do that.
5 See Bell v Byrne (1811) 13 East 554, 104 ER 486, Cartwright v Wright (1823) 5 B & Ald. 615, 106 ER 1315.
While it remains the law, it is appropriate to apply it in deciding the adequacy of pleadings.
[13] The defendants have shown aspects in which the plaintiff may not be able to make out his case at trial. It is for the plaintiff to decide whether to amend paragraph 9. At present he runs the risk that at trial what may be found may differ from what he has pleaded, and that those differences are so far apart that they cannot be repaired. This is not a case of requiring the plaintiff to amend but instead of giving him the opportunity to do so if he wishes, given the defendants’ warning.
Paragraph 11
[14] The problem facing the plaintiff here is that he is uncertain of the exact words used by the second defendant. Gatley on Libel and Slander recommends:6
As with cases of libel, the best course is for the claimant to set out as best he can in the particulars claimed the words which he believes to have been spoken by the defendant. If the exact words cannot be pleaded, the words must at least be set out with reasonable precision. He should then seek or apply for further information from the defendant as to the actual words which he used on the occasion in question. Such an application is only likely to be allowed where the claimant can show by uncontradicted evidence that the defendant has at a certain place and in the presence of certain persons made against him a slanderous imputation of definite character. The court will only assist the claimant if he can demonstrate that he has a good cause of action but is unable to find out the precise form in which to frame it.
[15] The plaintiff has already served interrogatories on the second defendant. In his answers, Mr Burnett denies making the statements alleged. As to the requirement to plead the actual words, paragraph 11 is adequate. The problem for Mr Cooper may be proving at trial that Mr Burnett made the statements.
[16] The defendants also require Mr Cooper to state the particular dates that Mr Burnett is alleged to have spoken on the telephone to other pharmacists. Mr Cooper has done the best he can by alleging that the statements were made in or about July 2014. Greater particularity cannot be expected. In Garnaut v Bennett (No.2) Edwards J said:7
6 Gatley on Libel and Slander (12th ed, Thomson Reuters, 2013) at 26.17 at 994.
7 Garnaut v Bennett (No.2) (1909) 29 NZLR 381 at 382.
… the particulars asked for cannot be given owing to the infirmity of human memory. In the absence of some special circumstances, riveting the date in the memory, very few persons could fix the date of a conversation about a matter in which they had no particular interest months after that conversation had taken place. If, therefore, I made an order for the delivery of particulars of the dates of the conversation requested, and staying the proceedings until they were given, I should preclude a trial of the action on its merits. The exercise of this discretion is discretionary, and I do not think that it would be a proper exercise of the discretion to make an order which would have this effect. If this were the rule, defamation of the most grievous character might pass with impunity.
[17] Those considerations apply here. It would be oppressive to require Mr Cooper to give greater details of dates than he has so far.
[18] The defendants also require the plaintiff to identify the persons to whom the words in paragraph 11 were spoken. The standard rule is to require the plaintiff to set out, as far as possible, the names of the persons to whom the defamatory words were spoken. See for example Bishop v Bishop.8
Slander uttered to one person might not be actionable if uttered to another person; in that sense, therefore, it becomes essential to see to whom it is uttered, and that is part of the case in which it has to be stated, and which the other side is entitled to know for the purpose of meeting the charge.
[19] That was said by way of illustration in a divorce case. Where a plaintiff does not know the names of the people to whom the statements were published, the recommended course is:9
A plaintiff in an action for oral defamation is obliged to identify the persons to whom it is alleged that the matter complained of was published. The names of those cases must be given unless he does not know them and thus is unable to give such particulars. In that case, provided that the plaintiff is able to establish a prima facie of publication it will be sufficient for him to give the best particulars he can identifying those persons.
[20] Here the question is whether Mr Cooper has shown a prima facie case that publication did take place. In an interview given as part of a Pharmacy Council investigation, Mr Burnett said:10
I was concerned he would be seeking employment, possibly in this area. I took it on my hands to … through what I would consider as an ethical
8 Bishop v Bishop [1901] P 325 at 328.
9 Lazarus v Deutsche Lufthansa [1985] 1 NSWLR 188 at194-195.
10 Cooper affidavit, exhibit D, page 222
obligation to inform the pharmacists around the Tauranga area that he was involved with theft of banking, the drinking of alcohol, and possible theft of drugs for personal sale. …
[21] That gives Mr Cooper a foundation on which to claim that Mr Burnett did make statements using those words to unidentified pharmacists in the Tauranga area. Mr Cooper has pleaded that the publication was wider: “pharmacists in the Waikato Bay of Plenty area.” He may need to consider whether he can prove more extensive publication than Mr Burnett has admitted. In my view Mr Cooper has an adequate basis to allege that Mr Burnett did make the defamatory statements referred to in the interview. He cannot be expected to give greater particulars of the actual people Mr Burnett made his statements to. Apparently Mr Burnett considered himself under an ethical obligation to communicate his concern to other pharmacists. That may, in turn, give rise to a qualified privilege defence (not a matter I am deciding now). It seems unlikely that the defences Mr Burnett could formulate in response to these allegations would vary according to the particular pharmacist spoken to. The identity of the people spoken to is within Mr Burnett’s knowledge, not Mr Cooper’s. It is well established that a plaintiff cannot be expected to give particulars of matters that are within the knowledge of the other side.11 In the circumstances, I consider Mr Cooper has adequately particularised the persons to whom the statements were made. Greater particularity cannot be expected.
Paragraph 12
[22] The defendants require Mr Cooper to set out the actual words alleged. The complaint is directed only at the use of indirect speech. The pleading is to be read as stating the words alleged to have been spoken by Ms Kearns. Particulars are not required.
Paragraph 19
The actual words are pleaded in indirect speech. That is adequate.
11 Sachs v Spielman (1887) 37 Ch D 295, Hickson v Scales (1900) 19 NZLR 202 (SC) and
Truckmaster Ltd v Mastagard Waste Ltd [2014] NZHC 1676.
Discovery application
[23]The defendants seek discovery directions as follows:
(a)further and ongoing disclosure of all communications between Mr Cooper and the Pharmacy Council;
(b)unredacted copies of Mr Cooper’s bank records for the period of his employment with the first defendant, from 6 January 2013 to 27 June 2014;
(c)Mr Cooper’s medical and counselling history since he left secondary school; and
(d)Mr Cooper’s training and employment history, including copies of personnel files from his prior employers and any tertiary institution attended by him.
[24] In my minute of 7 May 2015, I directed discovery of communications between Mr Cooper and the Pharmacy Council as a matter of ongoing obligation, but indicated that documents of a truly procedural nature need not be disclosed. Documents relating to Mr Cooper’s employment applications, steps taken to obtain employment, work and income since the end of his employment, and study and training undertaken were all relevant and discoverable. I directed disclosure of bank statements as bearing on allegations by the defendants that he took funds during his employment. I also directed disclosure of documents going to Mr Cooper’s medical and counselling history, limited to alcohol and drug abuse, and his prescription history.
Communications with Pharmacy Council
[25] Mr Cooper acknowledges the requirement to make ongoing disclosure of communications with the Pharmacy Council. He explains that no further documents have come into existence since August 2015. The defendants accept that. No orders are required, other than to record the requirement to make ongoing discovery.
Bank statements
[26] Mr Cooper has disclosed bank statements, but the copies made available on inspection were redacted so that only deposits were shown. He says that the other parts are not relevant. The defendants say that they are entitled to see not only deposits but also withdrawals. Mr Cooper’s affidavit of documents does not indicate that he had covered up parts of the bank statements and does not give any grounds for doing so.
[27] If a party wishes to cover up part or parts of the documents to be disclosed on inspection, they must set out in their affidavit of documents that there has been a redaction, and must give grounds. In G E Capital Corporate Finance Ltd v Bankers Trust Co, Hoffmann LJ said:12
It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant. Bray’s Digest of the Law of Discovery (2nd Ed 1910) pp 55-56 puts the matter succinctly:
‘Generally speaking, any part of a document may be sealed up or otherwise concealed under the same conditions as a whole document may be withheld from production … The party’s oath for this purpose is as valid in the one case as in the other. The practice is either to schedule to the affidavit of documents those parts only which are relevant, or to schedule the whole document and seal up those parts which are sworn to be irrelevant. …’
The oath of the party giving discovery is conclusive –
‘unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by the defendant, or by any admission made by him, in the pleadings, or necessarily from the circumstances of the case – that the affidavit does not truly state that which it ought to state. …’(See Jones v Andrews (1888) 58 LT 601, 604 per Cotton LJ)
Can one in this case see from the documents produced that the affidavit must be wrong in claiming that the blanked-out pages do not relate “to any matter in question” in accordance with the Peruvian Guano test?
That case was decided when only the Peruvian Guano “chain of inquiry” test applied. That approach continues to apply under the current “adverse documents” test.13 As
12 G E Capital Corporate Finance Ltd v Bankers Trust Co [1995] 1 WLR 172 (CA) at 174; [1995] 2 All ER 9393 (CA) 994-995.
13 Shah v HSC Private Bank (UK) Ltd [2011] EWCA Civ 1154.
Mr Cooper has not claimed a basis for the redactions in his affidavit of documents, the defendants are entitled to see the bank statements without any parts covered up.
[28] Lest that be considered unduly technical, I am satisfied that the defendants are entitled to see withdrawals from the bank statements as being relevant to the issues in this case. I was advised that Mr Cooper is alleged to have taken money from the pharmacy, which ought normally to have been banked. I understand that Mr Cooper may explain that by saying that he left IOU notes and that he took the money because he forgot to bring his EFTPOS card to work.14 The defendants say that they are entitled to probe that explanation by inspecting his bank statements to see whether they show EFTPOS transactions on a daily basis. I accept that submission. Mr Cooper is required to make unredacted copies of the bank statements available for inspection.
[29] The defendants also sought copies of Mr Cooper’s credit card records. The basis for this was that Mr Cooper had disclosed an invoice for the purchase of a dietary supplement by way of disclosure of documents relating to drugs. The invoice showed that he purchased with a credit card. I do not accept that inspection of credit card records is required, as coming within my original discovery directions or as arising out of other discovery. The purchase of the dietary supplement may be relevant, but it is irrelevant how Mr Cooper paid for it, be it in cash, by EFTPOS or by credit card.
Medical and counselling history and employment history
[30] Mr Cooper has not disclosed any documents going back earlier than the start of his employment with the first defendant. The defendants say that he should disclose documents relevant to his medical history of drug and alcohol issues going back much earlier. In response to Mr Cooper’s explanation that he was in Ireland from 2004 to 2011, they say that it should not be unduly difficult to obtain any medical records from Ireland. They say also that records as to his past training and employment can equally easily be obtained and disclosed. Mr Cooper opposes on the ground that these documents cannot be relevant to the matters in issue in this proceeding.
14 I do not comment whether these explanations are acceptable. That will be for trial.
[31] The defendants’ purpose in requiring earlier records is to hunt out materials to attack the plaintiff’s character. To put the matter in context, I quote Lord Devlin in Plato Films Ltd v Speidel:15
There is no doubt that a defendant in a libel action may in mitigation of damages give evidence that the plaintiff bears a bad character. The words “character” is not here used in the sense of a man’s quality or disposition but in the sense of the reputation which he bears. The action for libel is an action for loss of reputation. On the issue of damage, what has to be investigated is not whether the plaintiff is in truth a good or a bad man, but whether he is reputed to be a good or a bad man. If a man’s reputation is already so bad that it cannot be made worse, the man who defamed him will, in fact, have done him no further damage; and it is nothing to the point to say that his previous reputation was unjustly bestowed upon him. What is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not. Further, the enquiry must be limited to general reputation. If, under the guise of investigating what sort of reputation a man bears, one were to investigate whether he was thought or said to have committed specific acts, the enquiry would seem to degenerate into an enquiry about what a man had actually done in his past life, as ascertained by rumour and not by fact. … One cannot prove in chief specific instances of misconduct, as distinguished from general reputation, whether involved in the life or not, in order to mitigate damages.
[32] While the first part of that extract continues to apply, the rule against investigating whether the plaintiff had committed specific acts has now been abrogated in New Zealand. Section 30 of the Defamation Act 1992 says:
In any proceedings for defamation, the defendant may prove, in mitigation of damages, specific instances of misconduct by the plaintiff in order to establish that the plaintiff is a person whose reputation is generally bad in the aspect to which the proceedings relate.
[33] But if a defendant wishes to prove specific instances of misconduct under s 30, they must give notice under s 42:
In any proceedings for defamation, where the defendant intends to adduce evidence of specific instances of misconduct by the plaintiff in order to establish that the plaintiff is a person whose reputation is generally bad in the aspect to which the proceedings relate, the defendant shall include in the defendant’s statement of defence, a statement that the defendant intends to adduce that evidence.
[34] The defendants have not given notice under s 42 that they intend to adduce evidence of specific instances of misconduct by Mr Cooper to establish that his
15 Plato Films Ltd v Speidel [1961] AC 1090 (HL) at 1099-1100.
reputation is generally bad. As they have not pleaded this issue, the documents they are seeking cannot be relevant.16
[35] In any event, even if the defendants were to attempt to put Mr Cooper’s past reputation in issue, I would still need to be persuaded that the particular classes of documents sought by defendants are truly relevant to that issue. With respect, the defendants appear to be blurring the distinction noted by Lord Devlin in Plato Films v Speidel between reputation and quality or disposition. The purpose of their pursuit of the documents seems to be directed at showing that he may have an undeserved reputation rather than showing that he had a bad reputation. What is relevant is Mr Cooper’s reputation during his employment with the first defendant. His past medical and employment history, whatever it is, will not help in showing his reputation during his period of employment. In particular such private and confidential documents as medical records could not be relevant to Mr Cooper’s reputation, a matter of public knowledge. I therefore reject this part of the defendants’ application.
Outcome
[36] I do not direct the plaintiff to provide the particulars sought by the defendants. Notwithstanding that, the plaintiff may wish to review his pleading of the alleged defamations to check that he will be able to prove them at trial. Any amended statement of claim should be filed and served before the next case management conference. The defendants’ application for further particulars is dismissed.
[37] As to the application for further discovery, Mr Cooper is not in breach of the requirement to make ongoing discovery of communications with the Pharmacy Council. He is required to make available for inspection copies of bank statements, which have not been redacted. The defendants’ application requiring Mr Cooper to
16 New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644: “Relevance is determined by the pleadings…”
disclose medical and employment records going back before the start of his employment is dismissed.
[38] The parties have had mixed success. I invite them to confer as to costs. If they cannot agree, memoranda may be filed. The party filing second should file and serve a memorandum within five working days of the party filing first. I will decide costs on the papers.
[39] I direct a further case management conference for 3.00 pm Wednesday 13 April 2016. By the time of that conference, I expect the plaintiff to have complied with the discovery and inspection directions above.
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Associate Judge R M Bell
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