Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185

Barclay v Cox [1968] VicRp 87; [1968] VR 664

Bristile Ltd v The Buddhist Society of Western Australia Inc (2000) A Tort Rep 81-548

Bruce v Odhams Press Ltd [1936] 1 KB 697

Cock v Hughes [2001] WASC 24

Coyne v West Australian Newspapers Limited (No 1) (1996) 15 WAR 51

Gardiner v Ray [1999] WASC 140

Jones v Skelton [1963] 1 WLR 1362

Knowles v Roberts (1888) 38 Ch D 263

Lewis v Daily Telegraph Ltd [1964] AC 234

Loughans v Odhams Press Ltd [1963] 1 QB 299

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Monte v Mirror Newspapers Limited [1979] 2 NSWLR 663

Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997

Rob Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurtsville) Pty Ltd [1971] 1 NSWLR 472

Roberts v Camden [1807] EngR 404; (1807) 9 East 93

Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996

Singleton v French (1986) 5 NSWLR 425

Smith v Littlemore (1996) 15 WAR 289

Taylor v Jecks (1993) 10 WAR 309

Turner v Bulletin Newspaper Co Pty Ltd [1974] HCA 25; (1974) 131 CLR 69

Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118

1 ANDERSON J: This is an application to strike out parts of a statement of claim in a defamation action.

2 The application is out of time. Under O 20 r 19(3) of the Supreme Court Rules, it ought to have been made within 21 days of the delivery of the statement of claim. It was made about four weeks late. The main explanation for the delay is that there was a change of solicitors. Counsel for the plaintiff, Ms Cahill, has pointed out, correctly, that this change of solicitors was about a week after the time limit expired and, on the face of it, could not be an explanation for failing to meet the time limit. It is a matter for regret that consideration was not given to the pleadings promptly by the first solicitors. However, on balance, I have decided to grant an extension of time in this case. I am satisfied that the solicitors presently acting for the defendants did give fairly prompt attention to the pleadings and did bring this application fairly soon after they were instructed, and it is an application which, in a number of respects, has merit. I am not persuaded that the plaintiff has suffered any significant prejudice by reason of the delay, other than the prejudice inherent in all delay.

3 The defendants submit that pars 2, 3 and 4 of the statement of claim ought to be struck out. Those paragraphs are:

"2. The plaintiff graduated with a Bachelor of Pharmacy Degree with distinction in 1995 from the Curtin University of Technology in Perth in the State of Western Australia.

3. In that year she was awarded the 'Webster Memorial Gold Medal', which is an award only granted periodically to those meeting an exceptionally high criteria in the academic and practical study of pharmacy.

4. In her internship year she won the 'Trainee of the Year' award in respect of her professional skills and abilities as a trainee pharmacist."

4 Presumably, these facts are pleaded as relevant to the issue of the plaintiff's prior reputation.

5 In my opinion, these paragraphs are objectionable on at least two grounds. In the first place, there is no need for a plaintiff to plead prior good reputation in defamation proceedings. It is an immaterial allegation. The publication of a slander of the plaintiff in the way of her profession or calling gives rise to a cause of action because the law presumes in the plaintiff's favour that the words are false and damage has been suffered, unless and until the defendant pleads and proves the contrary. It is not part of the statement of claim to anticipate a defence: Hall v Eve [1876] 4 Ch D 341 at 345 per James LJ. Secondly, the facts here pleaded are not material facts, but mere evidence. They are matters from which the court of trial will presumably be asked to infer that the plaintiff was, or was reputed to be, a competent and skilful pharmacist. Order 20 r 8(1) provides: " ... every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim ... but not the evidence by which those facts are to be proved ... ".

7 The defendants submit that pars 7 and 10 ought to be struck out. Those paragraphs are:

"7. At all material times the second defendant was acting in the course of her employment and/or for and on behalf of the first defendant who is accordingly vicariously liable for her actions and defaults pleaded in this statement of claim.

8. ...

9. ...

10. On 5 April 2001 the second defendant, on behalf of the first defendant spoke and published to Mr Murray in an unsolicited telephone conversation, of and concerning the plaintiff and of and concerning her the way of her profession:

' ... '."

8 The defendants complain that these paragraphs leave it very unclear on what principle the liability of the separate defendants is based. It is said that, as against the first defendant, it would appear from par 7 that the plaintiff seeks to make out a case of true vicarious liability. In such a case, the first defendant's liability for slanders by the second defendant would depend upon whether what was said by the second defendant was said in the course of her employment by the first defendant. If so, it would not matter whether the first defendant had expressly authorised the second defendant's conduct or not. The question would simply be whether the second defendant, in doing what she is alleged to have done, was doing something reasonably necessary for effectively carrying out the duties of her employment as an employee of the first defendant. The defendants' complaint is that the principle of liability which underlies the plea in par 10 appears to be somewhat different inasmuch as in that paragraph the second defendant is alleged to have spoken the words "on behalf of the first defendant". This raises the question whether the plaintiff is truly relying upon vicarious liability or upon express authority.

9 I agree that there is some uncertainty about this, but I am not persuaded that it is sufficient to warrant striking out either or both of these paragraphs. It seems to me that the liability of an employer for a slander committed by his servant is more or less coextensive with the liability of a principal for a slander committed by his agent. In both instances, liability rests on the principle respondeat superior. Any uncertainty as to whether the plaintiff's case is dependent on proof of express authority can be resolved by a request for particulars of what is meant by "on behalf of the first defendant" in both par 7 and par 10.

10 I observe in passing that, whereas an employer is liable for the malice of his servant or agent, servants and agents are not necessarily liable for the malice of their employer. There is no principle respondeat inferior: Egger v Viscount Chelmsford [1965] 1 QB 248. As the statement of claim presently stands, it is not entirely clear whether the case is that the first defendant is liable for exemplary and aggravated damages on the principle respondeat superior or whether the case is that the first defendant and the second defendant acted jointly and are both guilty of the conduct relied on to support the claim for exemplary and aggravated damages. However, I do not consider that if there is any such uncertainty, it is sufficiently grave to embarrass either defendant in the drawing of their defences.

11 I decline to strike out pars 7 or 10 of the statement of claim.

12 The next attack is on the innuendo paragraph, par 11, which is in the following terms:

"11. In their natural and ordinary meaning the said words meant and were understood to mean that:

(a) the plaintiff lacked the capacity to undertake her duties and obligation as a pharmacist in a professional and competent manner;

(b) the plaintiff lacked the ability to undertake her duties and obligation as a pharmacist in a professional and competent manner;

(c) the plaintiff conducted her profession as a pharmacist in an unsafe manner;

(d) the plaintiff conducted her profession as a pharmacist in a negligent manner;

(e) the plaintiff conducted her profession as a pharmacist in so unprofessional way that she should not be employed by Mr Murray;

(f) the plaintiff made numerous and serious mistakes in the conduct of her profession as a pharmacist;

(g) if Mr Murray persisted with his employment of the plaintiff the safety of his business would be placed at risk."

13 Referring to subpars (a) and (b), the word "capacity" takes its meaning from its context and in the context of par 11, I can only think it means "ability". If it has some other meaning, that meaning is not clear. It is not to the point that the phrase "capacity and ability" was used in the publication complained of. It is for the pleader in the innuendo plea to say what meaning he/she contends for and this is not necessarily done properly by simply repeating in the innuendo paragraph the words of the publication. It is the pleading which must be clear and which must disclose a cause of action: Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 per Stephen J at 15.

15 The defendants submit that the innuendo pleaded in subpar (c) is not borne by the words complained of. In my opinion, this innuendo arguably is carried by the words complained of and is not necessarily the same as the accusation in subpar (b) of failure to act in a professional and competent manner. Arguably, it is a more serious allegation.

16 The defendants complain, essentially, that all of the innuendoes pleaded in the remaining subpars (b) to (f) are the same. Counsel for the defendants, Mr Bennett, submitted that because the subparagraphs do not set out distinct and different meanings, but the same meaning, all but one of them should be struck out.

17 I must say there is something to be said for this submission. I have hesitated about it. Allegations that the plaintiff conducted her profession as a pharmacist in an unsafe manner, that she conducted it in a negligent manner, and that she made numerous and serious mistakes as a pharmacist, seem to me to be allegations which say the same thing. However, I do not consider that this is so clearly the case that an order ought to be made striking out all but one of the subparagraphs. Arguably, they just may have different shades of meaning.

18 Subparagraph (g) is attacked on a slightly different basis. It is said to lack clarity of meaning. On one interpretation, it is not an innuendo of and concerning the plaintiff at all, or, if it is, it is unclear what the innuendo is. I think this submission must be accepted. Furthermore, if it is an innuendo of and concerning the plaintiff, it imputes no more than the innuendo pleaded in subpar (c). I would strike out subpar (g).

19 The next paragraphs which are attacked are pars 12 and 13 as follows:

"12. Further and in the alternative by way of innuendo the publication meant and was understood to mean to Mr Murray and having knowledge of the fact, matters and circumstances described that the plaintiff conducted her profession so negligently that the lives and safety of the public were in danger and were put at risk by her continued employment.

13. The publication would have been so understood in the terms pleaded in paragraph 14 by a qualified pharmacist with knowledge of the fact matter and circumstances that a pharmacist who made mistakes and had a lack of capacity to work as a pharmacist to the extent that the safety of a pharmacy was at risk, would put the lives and safety of the public at risk."

20 I think the reference to "paragraph 14" is an error, because all that par 14 says is:

21 Counsel for the defendants submitted that the imputation pleaded in par 12 is not a true innuendo; that is a meaning which would be understood only by persons having knowledge of particular facts not stated in the words complained of. I accept this submission. The pleader really seeks here to plead an innuendo arising from the innuendoes pleaded in par 11. That is not permissible. In any event, both these paragraphs suffer from the deficiency that they are too difficult to understand. The syntax is just too awkward. I would strike out pars 12 and 13 on the ground that they are embarrassing on these grounds.

22 The next paragraphs which are attacked are pars 16, 17 and 18, which are:

"16. Further the second defendant, on behalf of the first defendant published or caused the said words to be published maliciously.

PARTICULARS OF MALICE

(a) The publication to Mr Murray was made gratuitously and without being solicited by him.

(b) The second defendant sought to obtain from Mr Murray information as to other persons for whom the plaintiff may provide professional services for the purpose and with the intent of further publishing the publication.

(c) The second defendant sought a meeting with Mr Murray for the purpose and with the intent of impressing upon Mr Murray the seriousness and importance of the matters the subject of the publication.

(d) The second defendant sought to keep the fact and content of the publication confidential.

(e) The second defendant sought to deny the plaintiff the opportunity to respond to the matters the subject of the publication.

(f) On 23 February 2001 the plaintiff instituted proceedings pursuant to section 29 of the Industrial Relations Act 79 (Western Australia) in the Western Australian Industrial Relations Commission claiming that her termination of employment with the first defendant constituted a harsh, oppressive or unfair dismissal ('the unfair dismissal application').

(g) A conciliation conference in the unfair dismissal application was set down in the Western Australian Industrial Relations Commission on 26 April 2001.

(h) The publication of the words to Mr Murray was made for the dominant purpose of venting spite and ill-will towards the plaintiff and in retaliation for the plaintiff having instituted the unfair dismissal application.

(i) The second defendant for and on behalf of the first defendant published or caused to be published the words complained of knowing them to be false, or recklessly, not caring whether they were true or false and/or with no honest belief that they were true.

17. By reason of the matters described in paragraph 16 the defendants' conduct in publishing the publication has been unjustified, unreasonable and lacking in bona fides in a matter which has aggravated the damage to the plaintiff and the plaintiff thereby claims aggravated damages against the defendants.

18. Further and alternatively, by reason of the matters referred to in paragraph 16 the defendants' conduct in publishing the publication has been in contumelious disregard of the plaintiffs right and constitutes positive misconduct, and the plaintiff thereby claims exemplary damages against the defendants."

23 The first thing to be said is that, generally speaking, a plea of express malice in a statement of claim is anticipatory and unnecessary. Malice is presumed. An express allegation of malice must usually await a plea of qualified privilege in the defence. Only if there is a plea of qualified privilege will it be necessary to raise express malice. This must be raised by way of reply: O 20 r 13A(3). So, even although there is a plea of malice in the statement of claim, it will have to be pleaded again in the reply if it is to serve any purpose.

24 Mr Bennett attacked the substance of the malice plea, contending that the facts enumerated in the subparagraphs of par 16 are, for the most part, incapable of supporting a plea of malice. I decline to rule on this at this stage. I think it is best to ignore the plea of malice in the statement of claim on the basis that it is an unnecessary averment and so need not be pleaded to. If a defence of qualified privilege is pleaded (and it may not be) and a plea of express malice is raised by way of reply, that will be the time to consider the adequacy of the plea and particulars. I appreciate that, strictly speaking, unnecessary averments ought to be struck out of a statement of claim, but I think the practice in this Court is to deal with pleas of express malice in the statement of claim in the way that I have indicated.

25 The particulars in par 16 are also relied on, however, to support the claim for aggravated damages and exemplary damages; and on behalf of the defendants it is said those particulars cannot support those claims.

26 The rule is that a claim for exemplary damages and a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies: Order 20 r 9(3).

27 Firstly, as to aggravated damages, the plaintiff pleads in par 17 that the entitlement to aggravated damages arises because the defendants' conduct was "unjustified, unreasonable and lacking in bona fides" and this is said to be "by reason of the matters described in paragraph 16". It is impossible to see how the matters enumerated in the subparagraphs of par 16 can go in aggravation of the plaintiff's hurt or injury.

28 Dealing with them in turn, whilst the matters pleaded in subpar (a) may be relevant if there is a claim of qualified privilege, they cannot aggravate damages.

29 The matters pleaded in subpar (b) have nothing to do with the conduct of the defendants in publishing the words complained of to the person to whom they were published. The affront caused by the publication is not increased by proof that the defendants may have been planning to publish the same words to another person or persons.

30 The matter pleaded in subpar (c) simply cannot affect damages. If I understand it correctly, it is an allegation that the second defendant told the person to whom she spoke by telephone that she wished to meet that person and that this was either to repeat the slander or to utter a different slander. If that is what is intended to be conveyed by this subparagraph, it cannot possibly support a claim for aggravated damages. What the defendants intended to do or say on some other and later occasion can hardly increase the injury caused by the publication sued on.

31 As to the matter pleaded in subpar (d), I cannot see how that can increase the injury to the plaintiff's feelings or increase the affront to the plaintiff arising from the publication itself. The matter complained of in subpar (e) is of the same kind. It is, in effect, the same allegation as in subpar (d) or an averment of the consequence of that allegation. With due respect, I am quite unable to see how, even if true, it could aggravate the injury to the plaintiff's feelings caused by the publication itself.

32 As to the matters complained of in (f), (g), (h) and (i), I am also quite unable to see how these matters can go to aggravate the damages to which the plaintiff may be entitled should she succeed in proving the publication of the slander itself.

34 Next, as to exemplary damages, the allegation is that the plaintiff should have exemplary damages because the matters enumerated in par 16 show that in "publishing the publication" the defendants acted "in contumelious disregard of the plaintiff's right" and that the matters amounted to "positive misconduct".

35 Exemplary damages will only be awarded where the conduct of the defendants with respect to the defamatory publication is deserving of exemplary punishment. As Isaacs J said in Whitfield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71 at 81:

"From a very early period exemplary damages have been considered by very eminent Judges to be punitive for reprehensible conduct and as a deterrent."

They are awarded in addition to compensatory damages.

36 In Coloca v BP Australia Ltd [1992] VicRp 74; [1992] 2 VR 441 at 448, O'Bryan J said, concerning the authority to award exemplary damages:

"The conduct of a defendant towards the plaintiff must merit punishment. One should not seek to improve upon the words chosen by Mayne & McGregor on Damages 12th ed (1961) page 196 to describe the conduct which must be proved by a plaintiff before exemplary damages can be awarded for injury:

'They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights'."

37 The question is whether the matters enumerated in the subparagraphs of par 16 can arguably sustain an award of exemplary damages on these criteria.

38 In my opinion, the only matters which could arguably sustain a claim for exemplary damages are the allegations in subpars (h) and (i) of par 16. These subparagraphs appear to derive from the facts pleaded in subpars (f) and (g), which are really in the nature of particulars of subpar (h).

39 Put in other words, I understand the averments in these subparagraphs to amount to a plea that the defendants sought to put the plaintiff out of business as a pharmacist because the plaintiff had brought unfair dismissal proceedings against the first defendant. If proved, this would arguably entitle the plaintiff to an award of exemplary damages. None of the other matters in par 16 would do so.

40 I think the matter is most conveniently dealt with by ordering that par 18 be struck out, with liberty to replead.

41 It would be better if, in repleading the claim for exemplary damages, the pleader did not adopt the pleading technique of incorporating other paragraphs or subparagraphs by reference, but instead set out the matters relied on in support of the claim for exemplary damages separately as particulars of the claim. If this results in some repetition, so be it.

42 I invite the parties to send down a minute of orders giving effect to this judgment. If the terms of the minute cannot be agreed, I will hear counsel.