Birmingham v West Australian Newspapers Ltd [1999] WASC 19

Cock & Anor v Hughes & Ors [2001] WASC 24

Hanna v Maks [2003] NSWSC 158

Marley's Transport Pty Ltd & Anor v West Australian Newspapers Ltd & Anor [2001] WASC 31

McKechnie v Campbell (1996) 17 WAR 62

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

Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Shave v West Australian Newspapers Ltd [2003] WASC 83

Wiley v Farrell [2001] WASC 316

1 MASTER NEWNES: This is an application by the plaintiff to amend the statement of claim. The application is opposed by the defendants on essentially two grounds; first, that there has been undue delay and the amendments would cause prejudice to the defendants that cannot be compensated in costs and secondly, that the proposed amendment is defective.

2 The plaintiff, who is a legal practitioner commenced the action on 21 August 2001. For reasons that are not adequately explained, the writ was not served until 9 March 2002. A statement of claim was filed on 22 May 2002. In the statement of claim the plaintiff claims damages for libel in respect of a letter from the Legal Practitioners Complaints Committee (the "Committee") to the defendants which, he alleges, was published sometime between June and October 1997 by the defendants to another legal practitioner and, by virtue of that publication, to others in the recipient's firm.

3 The delay by the plaintiff in commencing the action and filing a statement of claim obviously did not impress upon him any need to pursue the action with even ordinary diligence. The plaintiff did not attend the first status conference held on 25 May 2002. The defendants attended in person. The parties were ordered to attend mediation and the time for filing a defence was extended until 21 days after the conclusion of the mediation conference.

4 The mediation conference was set down for 23 September 2002. In the meantime, the defendants instructed solicitors who wrote to the plaintiff on 4 September 2002 setting out various objections to the statement of claim.

5 At the mediation conference the plaintiff was represented by a solicitor but did not attend personally. He was subsequently ordered to pay the costs of the mediation conference. The plaintiff's solicitor indicated at the time of the mediation conference that a substituted statement of claim would be filed within two weeks. On 7 October 2002 the defendants' solicitors wrote to the plaintiff's solicitor advising that unless the substituted statement of claim was served by 11 October 2002 the plaintiff would apply to strike out the existing statement of claim. That time period was subsequently extended by consent to 18 October 2002 but no substituted statement of claim was filed. The defendants filed an application to strike out the statement of claim on 22 October 2002.

6 At a status conference on 28 January 2003 the plaintiff was ordered to file and serve any minute of proposed substituted statement of claim by 14 February 2003. It was not in fact served until 6 March 2003, less than two hours before another status conference was to take place. The defendants' solicitors wrote to the plaintiff's solicitor on 7 April 2003 setting out various objections to the minute.

7 At a status conference on 10 April 2003 the time for the plaintiff to file and serve a fresh minute was extended to 28 April 2003. At a further status conference on 1 May 2003 that time limit was extended to 8 May 2003. On 27 May 2003 an order was made that unless by 4 June 2003 the plaintiff complied with the order of 1 May 2003 the statement of claim be struck out and the action dismissed. On the last day for compliance, 4 June 2003, the plaintiff filed an application for leave to file a substituted statement of claim.

8 On 25 June 2003, orders were made programming that application for hearing at a special appointment on 25 August 2003. The plaintiff was required to file and serve his submissions and list of authorities, and any affidavits in support of the application, by 17 July 2003. He did not do so. On 22 July 2003, the plaintiff's solicitor informed the defendants' solicitors that the documents had not been filed due to the solicitor's illness but should be filed by 1 August 2003. They were not filed by that date. The plaintiff's solicitor wrote to the defendants' solicitors on 7 August 2003 saying that he was still ill and that he intended to file an application for leave to file the documents out of time. The hearing date of the special appointment was subsequently vacated and a new date fixed for 20 October 2003. The plaintiff was ordered to file and serve the same documents by 15 September 2003. Once again they were not filed because, the plaintiff's solicitor said, he had been ill. The hearing date of 20 October 2003 was vacated. The parties then attempted to negotiate programming orders but were unable to do so and the matter was finally listed for hearing in chambers on 21 January 2004. On that occasion, Acting Master Dixon made an order that unless the plaintiff's outline of submissions and list of authorities were filed by 20 February 2004 the action be dismissed. The outline and list of authorities were filed on the last day, 20 February 2004.

9 The position that has now been reached is that some two and a half years after the writ was filed, and well over six years after the relevant events are alleged to have occurred, the plaintiff still does not have a statement of claim in final form. For all practical purposes, the litigation has made no substantive progress since May 2002.

10 The plaintiff now seeks leave to file a substituted statement of claim. The defendants say the application should be refused in light of the inordinate delay by the plaintiff and the prejudice the defendants would suffer. Counsel for the defendants referred to Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 as authority for the proposition that principles of case flow management under O 1 r 4A and r 4B should be taken into account by the Court in exercising a discretion to grant leave to amend a pleading. Counsel acknowledged, however, that that case must be read in light of the decision of the High Court in State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 where it was held that case management principles could not be used to prevent a party from litigating an issue which was fairly arguable and that a party should be permitted to raise an arguable case provided any prejudice to the other party could be compensated by costs.

11 The defendants submitted that the matters sought to be pleaded were not fairly arguable and the prejudice to the defendants could not be compensated by costs. The defendants also contended that the proceedings were an abuse of process because they were brought with the predominate motive of punishing the defendants for what the plaintiff believed had been consistent attempts by the defendants since 1996 to discredit him.

12 It will be necessary to turn in due course to the specific complaints by the defendants about the terms of the minute of proposed statement of claim. It is sufficient for present purposes to say that, at least in respect of one of the imputations, that pleaded in par 3.1 of the minute, the defendants (in my view, rightly) do not contend that it is incapable of being conveyed by the words complained of or that it is not arguably defamatory of the plaintiff. In my view, at least to the extent of the imputation pleaded in par 3.1, the statement of claim pleads an arguable cause of action. It cannot therefore be said that the proposed statement of claim does not raise any arguable issues.

13 On the issue of the prejudice to the defendants, affidavits were filed by each of the defendants. The first-named defendant ("Mr Trevor") has deposed to various medical conditions from which he says he suffers and has set out a substantial list of prescribed medications which he is currently taking for those conditions. Mr Trevor says that whenever he sees anything in writing to do with the action "it gets a bit stressful". He says his stress levels have a generally negative effect on his health. He has annexed to the affidavit a brief letter from his general practitioner to the effect that the current court proceedings are aggravating some of his symptoms.

14 The second-named defendant ("Mrs Trevor") refers in her affidavit to a number of medical conditions from which she suffers and sets out a list of the prescribed medication which she is currently taking. Mrs Trevor says that she becomes anxious whenever she is contacted by her solicitors in relation to this matter and says she is upset that the plaintiff has been allowed to keep delaying the action. Annexed to Mrs Trevor's affidavit is a brief letter from the same general practitioner in which he says that the current court proceedings are aggravating some of Mrs Trevor's symptoms.

15 The defendants say that the delay in prosecuting the action has been manifestly excessive and the explanations offered by the plaintiff for the delays in the action are inadequate. The action is having an adverse effect on the defendants' health and costs will do nothing to relieve that. The amendment should therefore be refused.

16 It is unnecessary for present purposes to canvass the litany of reasons offered by the plaintiff for the various delays. They include oversight or error, his urgent attendance on client matters, his solicitor's urgent attendance on other clients' matters and, predominantly, the illness of his solicitor.

17 Suffice it to say that whatever the merits of the explanations in respect of individual steps in the action - and a number of the delays remain unexplained - viewed as a whole there can be no reasonable excuse for the egregious delay that has occurred in prosecuting this action. The plaintiff has regularly been in default of orders of the court. On two separate occasions springing orders have been made against him. Apart from those springing orders (both of which were complied with on the last day) it is difficult to find a time limit with which the plaintiff has complied.

18 As a legal practitioner the plaintiff must have been well aware of his obligation as a plaintiff to comply with time limits and to prosecute the action with reasonable diligence. He must also have been aware that the fact his solicitor was ill for an extended period of time was not a reason to allow the action to languish but required him to engage other solicitors if the matter could not be properly progressed.

19 Having said that, the question is whether the matters relied upon by the defendants provide sufficient grounds upon which this application to amend should be refused.

20 The plaintiff says he has put his house in order. He understands his solicitor is now in good health and he has very recently briefed Mr McCormack of counsel, who appeared on this application on his behalf.

21 It is the case that the refusal of this application would not bring the action to an end. The existing statement of claim would remain on foot. It is significant that what is now before the court is not an application to strike out the action for want of prosecution, but an application to amend the statement of claim. Different considerations apply to those respective applications.

22 It is not suggested that, apart from the separate question of the pleading issues, the proposed amendments would themselves prejudice the defendants. It was not contended, and it does not seem to me it could reasonably be said, that the effect of the amendments, as opposed to the effect of the continued existence of the action, would be adversely to affect the defendants' health.

23 The action has not reached a point where the amendments are likely to result in substantial further delay in the ultimate resolution of the action. The effect of the refusal of the current amendments, on the other hand, would be that, subject to the outcome of the extant application brought by the defendants in relation to the existing statement of claim, the action would proceed with the statement of claim in its present form and, therefore, on the basis of a case that the plaintiff no longer seeks to advance.

24 I do not therefore consider that the application should be refused on those grounds.

25 The defendants also argued that the amendments should be refused because the action was an abuse of the process of the court.

26 There is no doubt that a court has an inherent jurisdiction to control its own proceedings and in doing so to remedy abuses of its processes: Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210. But the jurisdiction to strike out as an abuse of process is one to be used with great caution: Goodson v Grierson (1908) 1 KB 761.

27 In Packer v Meagher (1984) 3 NSWLR 486 at 492 Hunt J described an abuse of process in the following way:

"The legal process of the court is being abused when it is used to exert pressure to effect an object not within the scope of the process ... or where it is used for a purpose other than that for which the proceedings are properly designed and exist ... or where the plaintiff in those proceedings is seeking a collateral advantage beyond what the law offers ..."

That formulation has been adopted with approval in this Court: Brunswick NL v Blossomtree Pty Ltd (1992) 7 WAR 226 at 234, McKechnie v Campbell (1996) 17 WAR 62 at 74 - 75.

28 In Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; (1982) AC 529 Lord Diplock said at 536:

"My Lords, this is a case about abuse of process of the High Court. It concerns the inherent power which any court of justice has to prevent the misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied; those which gave rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

29 As Owen J observed in McKechnie v Campbell (supra), abuse of process applies to any proceeding or step in a proceeding which, while consistent with the literal application of a procedural rules, would offend the principles of fairness to the other parties to the litigation or would impede the proper administration of justice.

30 An abuse of process has been found to exist where the predominant motive of the plaintiff in instituting the proceedings was not to vindicate his reputation but to "get back" at a defendant for co-operating with the authorities to bring proceedings against him or to intimidate, punish or cause commercial damage to the defendant: Hanna v Maks [2003] NSWSC 158.

31 The defendants submitted that the plaintiff's predominant motive in instituting this action was to punish the defendants for complaints they had made about him to certain regulatory authorities, assistance they had provided to those associated with the prosecution of criminal proceedings against him and what the plaintiff believed were consistent efforts since 1996 to discredit him. In support of that submission, the defendants referred to passages in an affidavit filed by the defendant in support of this application in which, in describing the background to the action, the plaintiff made allegations that the defendants had engaged in conduct of that nature. The defendants also referred to the extremely tardy way which the plaintiff has prosecuted the action.

32 It is quite apparent that there is a good deal of ill feeling between the parties and that the plaintiff feels greatly aggrieved by what he believes have been sustained and unfounded attacks upon his standing and reputation by the defendants. The plaintiff denies, however, that this action has been brought for any improper purpose and claims that the defendants acted maliciously in providing a copy of the letter from the Committee to the third party. In the claim for exemplary damages in this action, the plaintiff alleges that at the time the defendants did so they had in their possession, but did not disclose, a subsequent letter from the Committee in which it reported that it had not found the plaintiff guilty of any unprofessional conduct in relation to the complaints referred to in the earlier letter.

33 The plaintiff has offered an explanation for the long delay in bringing the action, ascribing it to his desire to await the outcome of certain criminal charges then pending, of which he was acquitted shortly before the writ was issued in this action. Explanations have also been offered for the delays in prosecuting the action. Whilst I do not consider that those explanations provide an adequate excuse, I would not be prepared to conclude that the delays are to be attributed to an improper motive on the plaintiff's part in instituting the action.

34 In my view, the matters relied upon by the defendants fall short of establishing that the proceedings have been commenced from some improper motive. On the materials before me, I would not be prepared to find the action, or this application, was an abuse of process.

35 It is necessary then to turn to the particular objections that have been taken by the defendants to the form of the proposed statement of claim. It is necessary for that purpose to set out the relevant parts of it. They are as follows:

"2. On a date unknown but between June and October 1997, the defendants published to Carmel Galati, a solicitor employed by Freehill Hollingdale & Page, a copy of a letter of and concerning the plaintiff from Mrs V Seymour, Legal Officer, The Legal Practitioners Complaints Committee to Mr S F Chan dated 25 February 1997 in the following terms:

The Legal Practitioners Complaints Committee considered this matter at a recent meeting.

The Committee considered the first complaint which was that you failed to advise Ms Trevor in 1983 that she was signing a mortgage document and failed to advise her of the amount of the loan secured by the mortgage for which she was liable.

The Committee found that the matters occurred some 14 years ago, and it would therefore be too difficult for the Committee to investigate the matter any further.

The Committee considered the second complaint that you provided Ms Trevor with a contract of sale and the transfer of land and led her to believe that the purchase price was $75,000 when in fact it was $100,000, and that you again told her in 1995 that the sale price was $75,000.

The Committee considered the transcript of the tape recording made of the conversation in 1995, which indicates that you were confirming the sale price was $75,000.

The Committee resolved that further investigation needs to be undertaken in respect of this matter and, in particular, a copy of the cheque for $100,000 needs to be obtained from you. Also, the documentation and bank statements relating to the moneys which Ms Trevor received, being her half share of the sale price, need to be obtained from her.

The Committee considered the third complaint which was that you failed to register the transfer of land in 1992 and failed to advise Ms Trevor of this, and also failed to discharge the old mortgage and register the new one.

The Committee considered that you were defacto acting for both parties, even if only on an informal basis, and it appeared that Ms Trevor was not advised that the transfer was not to be registered at the time of sale.

The Committee resolved to further consider this complaint once the investigation referred to in respect of the second complaint had been completed.

The Committee considered the fourth complaint which was that you advised Ms Trevor in writing in February 1996 that she no longer had an interest in the property when in fact her name is still on the title as registered proprietor and there is still a mortgage in place for which she is liable.

The Committee considered this letter to be misleading and considered that you had not been frank with Ms Trevor as to the true position, with the result that she had been misled as to the status of the sale of the property.

The Committee resolved to further consider this matter once the other investigations have been completed.

I therefore request that you obtain a copy of the original cheque from the bank and provide a copy to this office within 14 days.

3. The words complained of meant and were understood to mean in their ordinary and natural meaning that:

3.1 the plaintiff had been negligent in failing to advise a client (Ms Trevor) that she was signing a mortgage document and failed to advise the client of the amount of the loan secured by the mortgage of which the client was liable.

3.2 the plaintiff had deceived a client, namely Ms Trevor, in inducing her to believe that the purchase price of land was $75,000 when in fact it was $100,000 in a land transaction in which she was a party.

3.3 the plaintiff was negligent in failing to register a transfer of land and failed to advise his client, Ms Trevor, of this fact and also failed to discharge the old mortgages and register new ones.

3.4 the plaintiff misled his client, Ms Trevor, by advising her in writing that she no longer had an interest in a property when in fact her name was still on the title as registered proprietor and that there was still a mortgage in place for which the client was liable.

...

6. As the words complained of were published to an employee of Freehill Hollingdale & Page, it was a natural and probable consequence of the publication that other employees and partners of Freehill Hollingdale & Page would have seen the words complained of and the plaintiff relies on that extended publication in relation to his claim for damages.

AND THE PLAINTIFF CLAIMS:

A. compensatory damages for libel.

B. exemplary damages for libel.

C. interest on the damages awarded at the rate of 6% per annum from the date of publication until judgment pursuant to section 32 of the Supreme Court Act."

36 The principles to be applied on an application of this sort are relatively well established. The Court will not grant leave to amend a pleading into a form which is liable to be struck out: Atkinson v Fitzwater [1987] 1 All ER 483, Sinclair v James [1894] 3 Ch 554. 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. In determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of the usual starting-point 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."

37 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. In that respect, Mason J said in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on their own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition."

38 In that case, it was held that a newspaper report which does no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that he is guilty or probably guilty of that offence.

39 A pleading is also liable to be struck out at this stage if it is embarrassing in form. A plea will be embarrassing, among other things, if it rolls two or more distinct imputations into one: Taylor v Jecks (supra) at 320 - 321. As Anderson J (with whom Kennedy and Franklyn JJ agreed) pointed out in that case, "[d]istinct imputations should be distinctly pleaded so that the defendant can deal with them separately, otherwise there is potential for much confusion." The test for distinctiveness is whether the evidence required to justify each meaning would be substantially different: Chakravarti v Adelaide Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543, Lewis v Daily Telegraph Ltd [1964] AC 234 at 282.

40 The first complaint is that the minute fails to plead the relationship between the parties. It was submitted by the defendants that they are entitled to particulars of any preparatory averments which are not immaterial to the purposes of the plaintiff's case, particularly where the relationship between the parties is material to the issues in the action. Counsel referred to "Gatley on Libel & Slander", 9th ed, at par 26.4, where the learned authors say that it is customary and convenient to plead a short account of the parties, normally limited to a brief description of their occupation and their relationship (if appropriate). Where that is done the defendant will be entitled to particulars of it so long as the averment is not immaterial to the purposes of the plaintiff's case.

41 That does not seem to me to support the present objection. While the learned authors of Gatley note that it is a customary and convenient practice, they do not suggest that it is, and in my view it is not, a necessary practice in all cases. It will depend upon the circumstances of the case. In the present case, I am not satisfied that it is necessary to the plaintiff's claim to plead the relationship of the parties. To the extent that it may be useful or convenient for the purposes of the defence, that is a matter for the defendants.

42 The next complaint is in relation to the imputation in par 3.1 of the minute. The defendants say that imputation is not capable of being conveyed by the words complained of. It was submitted on behalf of the defendants that it is clear from the terms of the letter that the Committee expressly declined to make any findings on the complaint because the events had occurred some 14 years earlier and it would be too difficult to investigate them. The plaintiff argued that a reasonable reader could not conclude that the plaintiff had in fact been negligent as alleged by the client.

43 I accept that submission. There is nothing in the words complained of from which a reasonable reader could conclude that the complaint was well-founded. In order for a reader to reach such a conclusion, he or she would have to engage in the process of reasoning which Mason J said in Mirror Newspapers v Harrison (supra) is not permissible.

44 In my view, the imputation is plainly incapable of being conveyed by the words complained of and I would strike it out.

45 The defendants also submitted that the imputation pleaded in par 3.2 was not capable of being conveyed by the words complained of. The defendants say that a reasonable reader would understand the letter to mean the Committee had made no finding on the complaint and had simply resolved that further investigation needed to be undertaken when the additional material it had requested had been obtained. A reasonable reader could not conclude that the plaintiff had in fact been negligent as alleged by the client.

46 This imputation, however, stands in a somewhat different position to the first imputation. It is true that the letter does not refer to any finding having been reached by the Committee, but in this instance there is the additional comment that:

"The Committee considered the transcript of the tape recording made of the conversation in 1995, which indicates that you were confirming the sale price was $75,000."

47 In the end, not without some hesitation, I have come to the conclusion that the imputation is not unarguable and accordingly would not strike it out.

48 The defendants submit that the imputation in par 3.3 is embarrassing in form and, in any event, is not capable of being conveyed by the words complained of. In relation to the complaint of embarrassment, the defendants say that the imputation rolls up a number of distinct imputations, namely, that the plaintiff was negligent in failing to:

(b) advise the second defendant that he had failed to register a transfer of land and

(c) discharge the old mortgages and register new ones.

49 In my view, that objection is made out. The plea contains several distinct imputations and accordingly is embarrassing. I would strike it out.

50 The question of whether imputations to that effect are capable of being conveyed by the words complained of is a matter to be considered if and when the plaintiff seeks to reformulate the imputation.

51 The last objection was as to par 6. The defendants complain that the plaintiff has not pleaded sufficient particulars to found an arguable inference that the natural and probable consequence of the publication of the letter to one solicitor of the law firm is that other employees and partners of that firm would also have seen the letter.

52 I consider that that objection is made out. In the normal course, it might be appropriate, as the plaintiff's counsel contended it was in this case, to leave the matter to be dealt with on a request for further and better particulars, but in the light of the history of this action I consider that such particulars should be provided before leave to amend is granted. I would therefore refuse leave to amend in terms of par 6 as it stands.

53 In the result, therefore, I would grant leave to the plaintiff to amend the statement of claim in terms of the minute save for pars 3.1, 3.3 and 6.

54 I will hear the parties on the appropriate form of orders and on costs.