Andrew George Robinson v Lyn Dulcie Brighton & Anor

Andrew George Robinson - plaintiff PARTIES : Lyn Dulcie Brighton - first defendant Sea-Slip Marinas (Aust) Pty Ltd - second defendant

COUNSEL : B Connell - plaintiff R K Weaver - defendants

SOLICITORS : Robinson Legal - plaintiff McMahons National Lawyers - defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20036/07 Andrew George Robinson v Lyn Dulcie Brighton & Anor JUDGMENT 1 His Honour: The defendants' application is for a "strike-in" order that the plaintiff be directed to include as part of the publication presently pleaded, which is a letter to him from the defendants of 9 October 2006, additional material which was published at the same time. They also seek an order that the imputations pleaded in paras 4(a), (b)(i) and (b)(ii) be struck out. The applications, which are made under Pt 14, r 14.28, are opposed. The application for a strike-in order 2 At all material times the plaintiff was the managing director of Abel Point Marina (Whitsundays) Pty Ltd (Abel), and also a solicitor, being a consultant to the firm, Robinson Legal. At all material times the first defendant was the sole director of the second defendant which carried on business as a builder. For some time in the past, the second defendant carried out work for Abel on the Abel Point Marina project in the Whitsundays, Queensland, which has led to a dispute in which the second defendant claims from Abel the payment of a substantial sum of money. 3 By his further amended statement of claim the plaintiff claims damages against the defendants arising out of the publication on about 26 October 2006 of a letter to him from the defendants dated 9 October 2006 (the letter). The letter is annexure A to the pleading. It is alleged that it was published to numerous persons, including Mr Bryan Harris, Mr J Engwirda, and Mr Ian Roebuck. 4 The plaintiff alleges the following imputations arise from the natural and ordinary meaning of the matter complained of: "4(a) that the plaintiff being a lawyer had throughout his contractual involvement with the defendants engaged in unethical, disgraceful and dishonourable conduct which constituted professional misconduct; (b) (i) that the plaintiff had so grossly misconducted himself in his dealings with the defendants as to make him unfit to practise as a lawyer, or alternatively, (ii) that the plaintiff had so grossly misconducted himself as to warrant five other lawyers coming to the view that he was guilty of such serious professional misconduct as to make them ashamed to be lawyers; (c) that the plaintiff had by his unprofessional behaviour over the previous 18 months caused each of the defendants irreparable damage." 5 For the purposes of this application it was common ground that the letter was sent to the abovementioned persons together with the documents which are collected in exhibit A. The plaintiff has not sued upon the other documents in these proceedings. A summary description of the documents which accompanied the letter is as follows:

(a) A covering letter from the defendants to creditors in which the defendants request their support and deferment of payment pending the outcome of the dispute with Abel. Some background to the dispute is included.

(b) A form of draft letter addressed to the second defendant for completion by its creditor(s) headed "To whom it may concern" advising of readiness to wait for payment pending the outcome of the second defendant's dispute with Abel.

(c) A spreadsheet containing details of progress claims by the second defendant in respect of the Abel Point contract, and of actual payments made.

(d) A copy of the letter of 10 October 2006 from the plaintiff's solicitors to the defendants in which the allegations contained in the letter (the matter complained of) are denied, and the settlement proposal is rejected.

(e) A copy of the letter of 18 October 2006 from Kemp Strang, solicitors, to the second defendant's solicitors advising that it is not the current intention of their client, Australia and New Zealand Banking Group Limited, to enforce the charge secured for its loan to the second defendant. 6 The defendants challenge the pleading, and seek an order requiring the plaintiff to plead all of the documents as a single, composite publication. In substance, the application is made under Pt 14, r 14.28 for an order that the pleading in the further amended statement of claim referable to the matter complained of in annexure A (the letter) be struck out as unfair and embarrassing by reason of the omission of the documents which were said to form part of it. 7 The defendants submitted that it was probable that the recipients would have read the letter with the accompanying material and, so read, they would reasonably understand the defendants' complaint was not about the plaintiff's professional conduct as a lawyer, but about his conduct as a party involved in the commercial transaction now in dispute. It was put that when read in the context of the other documents the letter was capable of being understood as suggesting that the plaintiff's conduct in the transaction was inappropriate and, hence, qualified meanings to the effect that he was guilty of dishonourable and/or professional misconduct as a lawyer. It was put that the content of each of the several documents was capable of affecting the pleaded imputations conveyed by the letter if read alone. Thus it was put that, taken overall, the allegations of unprofessional behaviour would be understood to refer to the plaintiff's behaviour as a party to a commercial transaction and not to his behaviour as a lawyer. 8 The defendants also submitted that the letter and other documents related to the same matter, namely the commercial dispute between Abel and the second defendant. It was put that the link between the documents indicative of the defendants' intention that they be read together was evidenced by the specific explanatory references to each of them in the covering letter. 9 The defendants submitted that in this case, consistently with the principles in Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410, pp 413-415 and Burrows v Knightley (1987) 10 NSWLR 651, pp 655, 657, they are entitled to require the plaintiff to plead as one publication separate publications which are sufficiently identified and linked with each other. (Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107, para 53.) 10 The applicable test is as formulated in Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605 by Tobias, JA namely: "69 As the authorities discussed above make clear, the question is whether the matter complained of was capable of constituting the whole of the context from which a body of ordinary reasonable listeners would be concerned to determine the meaning of what was broadcast. If that is the only view reasonably open or if reasonable minds could differ as to whether it was so capable then, as was observed by Simpson J in Phelps and by Hodgson JA in The Age Corporation , it was open to the plaintiff to plead the matter complained of as a single broadcast containing the whole of the context in which to determine whether the pleaded imputations were conveyed by that matter." 11 In ABC Hodgson, JA said: "2 In my opinion, a plaintiff in defamation proceedings cannot be compelled to include additional material in the Statement of Claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material. 3 In my opinion, the underlying reason for the first requirement is that defamation depends on how the ordinary reasonable reader/listener/viewer would understand the material relied on by the plaintiff; and while an ordinary reasonable reader/listener/viewer could be expected to take into account the context provided by the publication of which that material is part (and indeed, to suspend judgment if unable for any reason to take in that context), such a person could not be expected to look for material outside that publication in order to understand the material relied on. 4 The reason for the second requirement is that, where there can be reasonable differences of opinion about what constitutes the publication of which the material relied on is part, the plaintiff can choose (in a case where there are two possibilities) to rely on one or the other or both, at least unless the plaintiff's choice can be considered as unduly complicating the proceedings. If the plaintiff chooses to rely on one, and if the different context provided by the other is capable of affecting the meaning of the material relied on by the plaintiff, then damages may be recoverable only in relation to those ordinary reasonable readers/listeners/viewers who took that one (and not the other) to be the publication; while if the plaintiff chooses (and is permitted) to rely on both, then damages would certainly be recoverable in relation to both sets of ordinary reasonable readers/listeners/viewers. 5 In my opinion, those propositions are consistent with Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410, Burrows v. Knightley (1987) 10 NSWLR 651, Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130, Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107, and The Age v. Beran [2005] NSWCA 289." 12 Thus in order to succeed on the strike-out application on the ground of unreasonableness, the defendants must establish that not only could the documents properly be seen as a single publication, but this is the only view reasonably open. This is another way of saying that they must establish that the plaintiff's claim as pleaded is so obviously untenable that it cannot possibly succeed or that it is manifestly unarguable (General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, p 129). On the authorities, it follows that a defendant by means of a strike-in application cannot force a plaintiff to replead unless it is demonstrated that the pleading provides the basis for an order under Pt 14, r 14.28. 13 In Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 I said: "15. Accordingly, the success of a defendant in a "strike in" application requires clearing two hurdles. The first is to establish that the omitted matter is an inseparable component of the publication. The second, after delineation of the publication by which the plaintiff claims the libel was conveyed, is to establish that the omitted matter is capable of affecting the sense or imputation(s) conveyed by the matter which the plaintiff has pleaded." 14 In this case the vital question is whether the only view reasonably open is that the letter and documents in exhibit A constituted one publication. Guidance is to be gained from the judgment of Simpson, J in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130, followed in ABC. She observed (para 10) that there was no rigid dividing line and no categorical test that could be applied to the determination of the boundaries between "a publication" as distinct from separate publications. She said: "10. … That is because the examples of publications that may be perceived either as a single entity or as multiple single entities are numerous. There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option as to the manner of pleading."

She went on to say: "22. Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. … 24. As I have sought to indicate, there is no easy answer to the question whether separate items should be regarded as individual or composite. Each case will have to be assessed on its own facts and circumstances. One relevant consideration, as Hunt J mentioned in Burrows , arises where the terms of one part of the publication invite the recipient also to receive the other. Thus, the serialisation of a book may be seen to invite the reader to read each instalment. This would suggest pleading a composite publication. On the other hand, where the instalments are published at weekly or longer intervals, they may more readily be seen as separate and distinct publications. 25. Another relevant consideration might be the diversity of the content of the individual items. Where the content of one is significantly different from the content of the other, quite different imputations might arise, and quite different defences might be able to be raised. In such a case one would generally expect the items to be pleaded separately." 15 In this case the plaintiff has elected to proceed as though the letter was a separate publication. In my opinion it cannot be said that it is not reasonably open for him to do so. This is not a case in which there are difficulties in distinguishing it from each of the other documents as, in my opinion, the differences between each are self-evident. 16 The content of each of the documents under consideration, including the letter, is different from that of the others. Although linked to the general subject of the financial position and outstanding debts of the second defendant allegedly attributable to the conduct of Abel whilst under the plaintiff's control, each is addressed to different aspects of the dispute between the companies. For example, the covering letter is concerned with a proposal to creditors not to require payment of the second defendant's debts to assist in its dispute with Abel, whereas the letter is concerned with criticism of the plaintiff's conduct on various grounds which prefaces a proposal for settlement of the dispute. Furthermore, in my opinion, there is nothing contained in the letter which would suggest to the ordinary reasonable reader that it should be read with the other documents in order to understand what the defendants were saying about the plaintiff. Each of the documents, including the letter, is intelligible without reference to the others. 17 Furthermore, the matter contained in the opening paragraphs of the letter constitutes a criticism of the plaintiff of a kind entirely different from criticisms of him contained in other parts of the other documents. It is an attack upon him as a lawyer, whilst the other criticisms are of him as the controller of the company with whom the defendants are in dispute. The allegations of professional misconduct made in the letter are not made in any of the other documents. 18 The defendants have failed to show that the letter and the documents can only be properly pleaded as a single publication, and that the only view reasonably open is that they constituted one publication. 19 In the result, the defendants have failed to clear the first hurdle. Had they done so, they would have failed at the second. This is because, in my opinion, the only material capable of conveying the plaintiff's imputations is contained in the letter. There are no statements in the other documents which are capable of changing the complexion of those pleaded imputations so as to attract the application of the principles considered in Gordon. The challenge to the imputations 20 As to imputation 4(a), the defendants submitted that it should be struck out as defective in form and/or as incapable of arising from the letter in its natural and ordinary meaning. 21 It was put that the allegation that the plaintiff "… engaged in unethical, disgraceful and dishonourable conduct which constituted professional misconduct" lacked necessary precision, and also rolled up a number of allegations which should have been pleaded as separate imputations. In my opinion, the pleading meets the test of precision as explained in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255. The phrase was intended as a hendiadys based on the first two paragraphs of the letter and, so understood, is not confusing, and does not breach the pleading requirements that it should not roll up two or more separate and independent concepts. As to such form of pleading, Hunt, J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, p 157 said: "Occasionally, a plaintiff pleads an imputation that he is, for example, unfit to hold public office by reason of a number of different matters asserted in the matter complained of. Such an imputation does not breach those pleading requirements but, in order to succeed in establishing such an imputation, the plaintiff must usually establish that the matter complained of was understood as asserting each and every one of the different matters specified in the imputation; if he fails in relation to any one of them, the whole imputation fails whether or not those assertions which are accepted by the jury justified by themselves the sting that the plaintiff was unfit in the manner pleaded." 22 The challenge to capacity must also be rejected. The test has recently been stated in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 (para 30) by Beasley, JA (Basten, JA, McClellan CJ at CL agreeing) to be that in circumstances where reasonable persons may differ as to their understanding of the publication, the matter is one that must, in accordance with authority, be left to the jury. 23 In my opinion, there is sufficient material in the opening paragraphs of the letter which commence with the words "Common law defines …" and end with the words "…your unprofessional behaviour during the past 18 months" for it to be open to a jury to find that the ordinary reasonable reader would conclude that the defendants are making an allegation in terms of this imputation. 24 As to imputation 4(b)(i), objection was taken on grounds of form and/or capacity. 25 It was put that the phrase "grossly misconducted himself" was ambiguous and imprecise and, therefore, rendered the imputation defective. I do not accept the submission. In my opinion, the terms of the imputation sufficiently specify the allegation concerning the plaintiff's conduct said to be conveyed by the letter. Its meaning, when read in the context of the whole of the letter, cannot reasonably be doubted. 26 As to capacity, this imputation is capable of arising from the contents of the letter read as a whole and, in particular, the passage referred to in relation to imputation 4(a). In my opinion, the question of the degree of misconduct arising from the use of "grossly" claimed to have been attributed to the plaintiff in the letter is quintessentially one for the jury. Having regard to the whole of the letter, it is arguable that the likely impression given to the ordinary reasonable reader is that the plaintiff had grossly misconducted himself as pleaded. The objection as to capacity fails. 27 As to imputation 4(b)(ii) objection was taken on grounds of form and/or capacity. 28 In my opinion the objection that the pleading failed to specify the act or condition of the plaintiff with requisite precision should be upheld. It is unnecessary to determine the capacity question. 29 In my opinion the vice of the imputation with the phrase "… as to warrant five other lawyers coming to the view that he was guilty of such serious professional misconduct as to make them ashamed to be lawyers" is that it leaves vague and uncertain the conduct or behaviour of the plaintiff which warranted the outcome described. It necessarily leads to confusion about what the defendants would be required to prove in order to establish its truth so far as it concerns the plaintiff. This imputation will be struck out, with liberty to replead. Conclusion 30 I hold that the letter, being the matter complained of, is reasonably capable of conveying imputations 4(a), (b)(i) and (c). 31 Order that imputation 4(b)(ii) be struck out, with liberty to replead. 32 Otherwise the defendants' application is dismissed. 33 Order that the plaintiff file and serve any amended statement of claim by 4pm 26 October 2007. 34 The proceedings are stood over for directions to the defamation directions list 9.30am 12 November 2007. Failing agreement on the question of costs, the parties may raise the issue on this occasion. The parties will also have the opportunity to be heard as to whether the proceedings should be referred to mediation. **********

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