1 MASTER NEWNES: This is an application by the defendant to strike out certain paragraphs of the statement of claim on the ground that they disclose no reasonable cause of action, or alternatively they will prejudice, embarrass or delay the fair trial of the action.

2 In par 2 of the statement of claim, the plaintiff pleads that, in "The West Australian" newspaper on 24 September 2003, the defendant published the following words of and concerning him:

"Bond leaves final shaken not stirred - Andre Malan

Nobody should ever take the mood of an AFL grand final crowd for granted.

Bob Hawke found that out when he fronted up at the MCG at the height of his popularity in the 1980s and was booed so loudly that he could hardly be heard above the racket.

Bad as it looked, that reaction was actually quite good-natured. What they were saying was: 'We've come here for a game of footy, and we don't want anyone trying to make political capital out of the occasion.'

I doubt any prime minister will ever put himself in the firing line like that again.

So it will be interesting to see how the crowd will react if, as seems likely, businessman Alan Bond the driving force behind Australia's America's Cup win 20 years ago, joins a parade of sporting champions before the grand final this year.

My guess is that Mr Bond may be right in his expectation that he will get a warm reception in the cheerful atmosphere of a football match. Nobody questions that winning the America's Cup was one of our greatest sporting achievements, and that his energy and persistence were largely responsible for it.

There will also be some of the traditional Australian admiration for scoundrels and larrikins, supported by the popular view that unlike Christopher Skase, Mr Bond stayed to face the music.

But there are a few good reasons why it would be better for all concerned if someone took Mr Bond aside and discreetly advised him not to take part in the parade.

For starters he is not, and never has been, a sporting champion. His role in winning the cup was that of a facilitator, and he has already been recognised for it. For him to take part in the parade of champions would be akin to the chairman of Ferrari getting on the podium after a grad prix victory.

More importantly, Mr Bond is not the loveable rogue and all-Australian good guy his supporters are now trying to reinvent him as. He is a conman and dodgy dealer of the worst kind, who used deception and artifice to enrich himself, without regard for the countless people who were hurt along the way. In the process he brought Australia into disrepute around the world.

He may have done his time behind bars, but if you consider the scale of his crimes and the damage he did, he got off very lightly.

With his army of lawyers and access to a vast offshore supply of hidden wealth Mr Bond has made a mockery of the Australian legal system.

As Paul Barry wrote in his book Going for Broke: How Bond Got Away With it: 'He has shown in the most public way possible that if your pockets are deep enough and your lawyers good enough, you can tie the system in knot for ever, or at least until the most tenacious and bloody-minded pursuers give up.'

Most pathetic of all were his repeated claims that he was brain damaged - a condition that miraculously cleared as soon as he left a courtroom.

All of that may have been forgivable if Mr Bond had shown remorse for his crimes and made some effort to compensate people whose lives were damaged by his actions, but as far as I know, he has done neither.

In fact, his first business venture when he got out of jail was a 'payday lender' in Britain, offering short-term loans to desperate people at very high interest rates.

Unfortunately greed, excess and corporate craziness are still as much of a problem today as they were in the 1980s. What sort of message does it send if we see a fraudster bathing in the warm admiration of football fans at our premier sporting event.

If Alan Bond takes part in the champions' parade he will diminish it."

3 The plaintiff alleges that, in its ordinary and natural meaning, the article conveyed the following imputations:

"3.1 that the Plaintiff had evaded his legal obligations in Australia by hiding his financial assets in countries other than Australia; and

3.2 the Plaintiff had acted illegally in hiding his wealth in countries outside of Australia."

4 It is then alleged in par 4 of the statement of claim that the words conveyed the following true innuendos:

"4.1 that as a bankrupt, the Plaintiff engaged in illegal behaviour by not making available as an asset in his bankruptcy wealth hidden in countries other than Australia;

4.2 that as a bankrupt, the Plaintiff failed to make available to his creditors substantial assets hidden in countries other than Australia."

5 The plaintiff alleges that the article would have conveyed the meanings pleaded in par 4 to the readers who had knowledge of the fact that the plaintiff was declared bankrupt in 1992 and was discharged from bankruptcy in 1998.

6 The principles to be applied on an application of this sort are relatively well established. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319.

7 The test to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of was discussed is the well-known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371:

"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:

'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."

8 The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid said, at 258:

"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."

9 There is, however, an important distinction to be drawn between a person's understanding of a publication and judgments or conclusions which that person may arrive at as a result of his or her own beliefs and prejudices: Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 per Mason J at 301.

10 The imputation pleaded must specify "the precise act or condition asserted of, or attributed to" the plaintiff: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 and Taylor v Jecks (supra) at 319. But as Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, at 137, the requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case, a judgment needs to be made as to the degree of particularity or generality that is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology.

11 The defendant objected to the imputation pleaded in par 3.1 on several grounds. First, it was submitted that the imputation was so uncertain as to be embarrassing. The defendant complained that the expressions "evaded", "legal obligations" and "financial assets" were, in the context, vague and ambiguous.

12 It was argued that it was not clear to what "legal obligations" the plea referred. There were any number of possible legal obligations to which it might be a reference. The defendant said that the expression "financial assets" was uncertain because it appeared to contemplate that there were assets of other, unspecified types, leading to uncertainty as to what the adjective "financial" was intended to encompass. It was also argued that there was nothing in the words complained of to suggest that the plaintiff had hidden his financial assets overseas. The article referred to the plaintiff having access to hidden wealth overseas. It was one thing to say that a person had access to hidden assets and another thing to say that they owned those assets.

13 It was also submitted on behalf of the defendant that it was uncertain what was meant by "evaded", and in particular whether the pleaded imputation was intended to mean that the plaintiff had acted illegally. Senior Counsel for the defendant pointed out that the word "evasion" had a well established meaning in taxation law, where "evasion" referred to a contravention of the law, as opposed to "avoidance" which involved actions within the law so as to avoid the burden of tax that would otherwise fall. The fact that the plaintiff had expressed the imputation in terms of evasion suggested that the intention was to plead an imputation of illegality.

14 It was argued, however, that if that was the intended meaning, it was not capable of being conveyed by the words complained of. It is not of itself illegal to hide assets overseas. A person may do so for a variety of lawful reasons. Senior Counsel for the defendant submitted that (assuming for present purposes the article conveyed the meaning that the plaintiff owned the assets), there was nothing in the article that was capable of conveying an imputation that in hiding his assets overseas the plaintiff had acted illegally.

15 The defendant made similar complaints in relation to the imputation pleaded in par 3.2. It was submitted that the nature of the illegality alleged in the imputation was unclear, that the words complained of were not capable of conveying an allegation of illegality and there was no basis in the words complained of for an imputation that the plaintiff was hiding his own wealth, as opposed simply to having access to wealth overseas. Again, Senior Counsel for the defendant submitted that it was not of itself illegal to hide wealth overseas and, accordingly, the imputation that by doing so the plaintiff had acted illegally was ambiguous and unclear.

16 Counsel for the plaintiff said that the imputation in par 3.1 did not impute illegality. The word "evaded" was not here used in a taxation context and would not therefore be understood to bear the particular meaning it bears in that context. It would be understood by a reader in the ordinary sense of evading a legal obligation in a morally blameworthy sense.

17 In respect of par 3.2, it was submitted on behalf of the plaintiff that, in the context of the article as a whole, the hiding of wealth overseas would have been understood by a reasonable reader to have been for an illegal purpose. Counsel for the plaintiff relied particularly on the fact that the statement that, with his army of lawyers and access to a vast offshore supply of hidden wealth, the plaintiff had made a mockery of the Australian legal system, immediately followed statements in the article about the nature and scale of the plaintiff's crimes.

18 In my view, the imputations in pars 3.1 and 3.2 are objectionable. The reference in par 3.1 to the plaintiff having "evaded" his legal obligations is ambiguous, as it is not clear whether that is intended to impute illegal conduct or simply, as described by the plaintiff's counsel, morally blameworthy conduct. I also consider that the reference to "legal obligations" is uncertain. It is not a case where the plaintiff is adopting the language used by the defendant, but rather the plaintiff is seeking to ascribe a particular (albeit, in my view an insufficiently specific) meaning to more general statements contained in the article. And as Senior Counsel for the defendant pointed out, it is not of itself contrary to any legal obligation to hide assets overseas (or within Australia for that matter). In the absence of any plea as to the nature of the legal obligations it is said a reasonable reader would have understood the plaintiff was evading, the plea, in my view, is on its face embarrassing.

19 I do not accept the defendant's contention that a reasonable reader would not understand the article to be referring to assets or wealth of the plaintiff but only to assets or wealth to which he had access. In the context of the article as a whole, I consider it is capable of being understood as referring to the plaintiff's assets. In that respect, the article earlier states that the plaintiff had enriched himself and in the passage immediately following the reference to "vast supply of hidden wealth" there is the quote from Mr Barry's book in which he makes the statement, in reference to the plaintiff, that "if your pockets are deep enough ... you can tie the system in knots forever ...". The expression "financial assets" is, however, unclear. If the adjective "financial" is intended to qualify or limit "assets", then the qualification or limitation intended is not apparent. If it adds nothing to assets, then it should be omitted because it gives rise to uncertainty. In that context, it is notable that par 4.2 refers simply to "assets".

20 I accept the defendant's submission that, on its face, the article is not capable of conveying the imputation in par 3.2 that the plaintiff had illegally hidden wealth overseas. To say that a person has hidden wealth overseas would not, in my view, convey to a reasonable reader, who knew no more about the matter than that, that the plaintiff had acted illegally.

21 It was submitted on behalf of the defendant that the imputations pleaded in par 4 were also objectionable. Senior Counsel argued that the nature of the "illegal behaviour" pleaded in par 4.1 was unclear. The imputation that the plaintiff had behaved illegally "by not making available [the hidden wealth] as an asset in his bankruptcy" was capable of a number of different meanings. It could mean, for instance, that he had made a false statement as to his assets, or that he had conspired to prevent his trustee in bankruptcy from recovering the assets, or that he had failed to disclose the assets to the trustee in bankruptcy, or that he had failed to provide some necessary assistance required to enable the assets to be realised. It was, in addition, again submitted that the article did not suggest the offshore assets were in fact the property of the plaintiff.

22 In relation to par 4.2, it was submitted that it was not clear on what basis it was said to be defamatory. In the first place, it was not clear whether or not it was intended to impute illegality. If it was intended to impute illegality, then it is repetitious of par 4.1 - and was objectionable on that basis - and it is subject to the same objections as par 4.1. If it does not impute illegality, then it is not defamatory of the plaintiff. In addition, the phrase "failed to make available to his creditors" was unclear for the reasons submitted in relation to the comparable phrase in par 4.1.

23 The plaintiff's counsel argued that the degree of specificity of the imputations reflected the general nature of the allegations contained in the article itself.

24 I accept that the imputations in par 4, as they are currently pleaded, are uncertain and therefore embarrassing. In par 4.1, the nature of the illegal behaviour alleged in the imputation is unclear and in par 4.2 it is unclear whether the imputation is that the plaintiff engaged in illegal behaviour or simply in blameworthy behaviour. The phrases "not making available as an asset in his bankruptcy", and "failed to make available to his creditors" are, as submitted on behalf of the defendant, capable of conveying a range of different meanings. I would therefore strike out the imputations.

25 The defendant objected to pars 7, 8 and 10 of the statement of claim on the basis that, in each case, the paragraph did not comply with O 20 r 9(3) of the Rules of the Supreme Court 1971 (WA) which is in the following terms:

"A claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies, so that the material facts giving rise to any claim for aggravated or exemplary damages must be pleaded."

26 Senior Counsel for the defendant also referred to O 20 r 13(1) which provides, in effect, that every pleading must contain the necessary particulars of the facts on which a party relies for any allegation of the condition of the mind of any person, except knowledge.

27 The matters pleaded in pars 7 and 8 are relied upon by the plaintiff for exemplary damages and the matters pleaded in pars 7, 8 and 10 are relied upon for a claim for aggravated damages. It was submitted that the particulars must be contained within the pleading itself and it was not a matter that could simply be left for a request for further and better particulars by the defendant.

28 The plaintiff's response was that such particulars as the defendant considers it requires can be requested in the usual way. There was nothing embarrassing about the plea.

29 Both counsel referred to Smith v Littlemore (1996) 15 WAR 289 in support of their position. It seems to me, however, that that decision was not directly concerned with the specific issue that arises in this case. In Smith v Littlemore, the plaintiff pleaded claims for aggravated and exemplary damages in general terms analogous to the pleading in the present case. The defendant sought further and better particulars of the allegations and the plaintiff refused to provide them on the ground that they were matters of evidence and not properly the subject of a request for particulars. Owen J considered that the particulars should be provided and so ordered. In the course of his reasons, his Honour referred to NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 where Hunt J, in obiter dicta, said, in relation to an allegation of malice, that particulars alleging that the party published the words knowing them to be false, or without an honest belief in their truth, or recklessly without caring whether they were true or false, do not comply with the rules unless they were accompanied by a statement of the facts and matters relied upon to support that allegation. Owen J went on to observe, however, that those comments were made in relation to a rule that, by its reference to "facts & matters" went further than "material facts" in O 20 r 9(3). His Honour was not required to decide whether O 20 r 9(3) had the same result, as the only question in the case before his Honour was whether, in response to the defendant's request for particulars, such particulars should be ordered.

30 Without reaching a concluded view, I am inclined to think that O 20 r 9(3) does not require material of the nature referred to in NRMA Insurance Ltd to be pleaded as material facts and that a failure to include such particulars in the statement of claim should not result in a pleading being struck out, at least in circumstances where any difficulties occasioned to the other party can adequately be overcome by the provision further and better particulars. In the present case, I would not be prepared to strike out the relevant pleas in the statement of claim, as the required particularisation can readily be achieved by a request for further and better particulars and any deficiency in the pleading can adequately be cured in that way.

31 I would, therefore, strike out pars 3 and 4 of the statement of claim with leave to the plaintiff to replead.

Bond v West Australian Newspapers Ltd [2004] WASC 181

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Judgment (58 paragraphs)

Bond v West Australian Newspapers Ltd [2004] WASC 181 (18 August 2004)

Parties

Cases Cited (5)