Defamation - Slander - Substance of words pleaded - Requirement that actual words must be pleaded - Plea of aggravated and exemplary damages - O 20 r 9(3) - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 16, O 20 r 9(3)

Bride v The Australian Bank Ltd, unreported; FCt SCt of WA; Library No 950632; 21 November 1995

Cock v Hughes [2001] WASC 24

Coyne v WA Newspapers Ltd No 1 (1996) 15 WAR 51

CSBP and Farmers Ltd v Westerb Broadcasting Services, unreported; SCt of WA; Library No 6593.1; 10 February 1987

Gumina v Williams (No 1) [1990] 3 WAR 342

Hazeldean v Austal Ships Pty Ltd [2004] WASC 44

Jones v Skelton [1963] 1 WLR 1362

Mann v Board of Health of ACT (1996) 67 FCR 383

Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 23 ALR 167

Munro v Coyne [1990] WAR 333

Parker v Copeman, unreported; SCt of WA; Library No 6977; 16 December 1987

Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500

Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1

1 MASTER NEWNES: The defendants applied by chamber summons dated 23 March 2004 for judgment against the plaintiffs under O 16 of the Rules of the Supreme Court 1971 (WA), or alternatively to strike out various paragraphs of the statement of claim. On 22 June 2004, I ordered that pars 4 and 6 of the statement of claim, and the prayer for relief so far as it claimed aggravated and exemplary damages, be struck out. I said I would deliver reasons for my decision. These are those reasons.

2 In the statement of claim, the plaintiffs plead two allegedly defamatory publications by the second defendant, in his capacity as managing director of the first defendant, to named officers of the Australian Taxation Office. The plaintiffs also claim that they provided the first defendant, in his capacity as managing director of the first defendant, with confidential financial and accounting records of a company controlled by the plaintiffs and that, in breach of their duty of confidence to them, the defendants disclosed that information to the Australian Taxation Office.

3 In this application, the defendants took three substantive objections to the statement of claim. The first was that the plaintiffs do not plead the words complained of, but simply set out the substance of the alleged words; secondly, although claimed in the prayer for relief, the plaintiffs do not plead claims for aggravated and exemplary damages, together with the facts on which they rely for those pleas, in the statement of claim as required by O 20 r 9(3); and, thirdly, the plaintiffs do not sufficiently identify the confidential information allegedly supplied to the defendants and do not plead the manner in which it is alleged that information was disclosed by the defendants to the Australian Taxation Office.

4 The defamatory publications alleged by the plaintiffs are pleaded at pars 4 and 6 of the statement of claim. They are in the following terms:

"4. On 15 October 2001, the second defendant falsely and maliciously spoke and published of and concerning the plaintiffs to Mr Nick Giannopoulos, an employee of the Australian Taxation Office ('the ATO'), words the substance of which is set out in sub-paragraphs (a) and (b) herein:

(a) The firstnamed plaintiff had informed him (the second defendant) that in the financial year ending 30 June 1999, WA Racing Services had received cash monies of $56,672 which had not been put through its books.

(b) The firstnamed plaintiff had been doing this for a number of years.

(c) The secondnamed plaintiff was a director of WA Racing Services and was 'also involved with this business'.

(The substance of the words referred to in (a) to (c) are referred to herein as 'the First Publication').

...

6. Further, on 10 June 2002 the second defendant falsely and maliciously spoke and published of and concerning the plaintiffs to Ms Pamela Parker and Mr Daryl Freame, both employees of the ATO, words the substance of which is set out in sub-paragraphs (a) and (b) herein:

(a) On 5 December 2000 the accountant for WA Racing Services, a Mr McBain, had informed the second defendant that the figures contained in the financial statements for WA Racing Services for the financial year ending 30 June 1999 were not tax figures but had been altered to include the undeclared cash component of the business.

(b) Only the income of $84,230 had been included in WA Racing Service's tax return for the financial year ending 30 June 1999, and that income from 'Sales: WA Racing" and 'Sales: Computers' were not listed in the tax return income, and that the difference was taken up in directors' fees.

(The substance of the words referred to in (a) and (b) are referred to herein as 'the Second Publication').

5 In pars 8 and 9 of the statement of claim the plaintiffs plead the imputations alleged to have been conveyed by the words complained of in pars 4 and 6 respectively. No complaint was made on this application about the imputations.

6 The defendants contended that the plaintiff was obliged to plead the precise words allegedly spoken and, because that had not been done, the statement of claim disclosed no reasonable cause of action.

7 It has long been established that in a claim for slander the actual words allegedly spoken must be set out verbatim and it is not sufficient to plead that the defendant used words to an alleged effect, or to set out the substance of what it is alleged was said: Cook v Cocks (1814) 3 M & S 110, per Lord Ellenborough CJ at 113, Harris v Warre (1879) 4 CPD 125; Collins v Jones [1955] 1 QB 564. The very words must be set out in order that the Court may judge whether they constitute a cause of action: Wright v Clements (1829) 106 ER 746 at 747.

8 In Harris v Warre (supra), Lord Coleridge CJ said at 128:

"In libel and slander everything may turn on the form of words ... the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends."

9 The words a plaintiff alleges were spoken should therefore be pleaded in direct speech in the terms that the plaintiff alleges they were spoken by the defendant.

10 The plaintiff is not, however, obliged to prove at trial that those exact words were, in fact, published. As Atkin LJ observed in Tournier v National Provincial Bank [1924] 1 KB 461 at 488:

"No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established."

11 It is therefore sufficient if the plaintiff proves at trial that the defendant spoke words substantially to the same effect as those pleaded: Tournier v National Provincial Bank (ibid).

12 In the present case, the plaintiffs do not plead the words they allege were spoken by the second defendant, but rather the substance of those words. That, I understood from what was said in the course of argument, is because they do not know the precise words used. That, however, is not to the point. The plea in its present form is embarrassing and it was on that ground that I ordered that pars 4 and 6 be struck out.

13 That, of course, does not mean that the plaintiffs have necessarily reached an impasse if they do not know the actual words spoken.

14 Where a plaintiff knows that defamatory words of a certain nature were spoken, but does not know the actual words used, the appropriate course is for the plaintiff to set out, as best as he or she can, the words which are believed to have been spoken by the defendant. The plaintiff may then interrogate the defendant as to what words were used on the occasion in question. Such an interrogatory is only likely to be allowed, however, where the plaintiff can show by uncontradicted affidavit that the defendant has at a certain place, in the presence of certain persons, made a slanderous imputation against the plaintiff of a definite nature. Interrogatories will not be permitted to ascertain whether defamatory words were spoken, but only what defamatory words were spoken. The Court will only assist a plaintiff who can demonstrate that he or she has good cause of action, but is unable to find out the precise form in which to frame it: Gatley on Libel and Slander, 9th ed, par 26.16, Atkinson v Fosbroke [1866] LR 1QB 628.

15 A plaintiff may, of course, interrogate a defendant as to whether the defendant spoke the specific words alleged in the statement of claim "or words to that effect": Dalgleish v Lowther [1899] 2 QB 590, Sanderson v von Radeck (1905) 119 LPJ 33 HL, Barham v Huntingfield [1913] 2 KB 193.

16 The second complaint by the defendants was that, although in the prayer for relief the plaintiffs claimed aggravated and exemplary damages, they do not plead such a claim, or the facts upon which they rely for it, in the statement of claim, as required by O 20 r 9(3). That provision requires that 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."

17 The plaintiffs' counsel argued that the basis of the claim for aggravated and exemplary damages lay in the plea in each of pars 4 and 6 that the words were spoken "falsely and maliciously" and, further, in par 10 where it was pleaded that the words were calculated to, and did, disparage the plaintiffs.

18 In my view, the pleading does not comply with O 20 r 9(3). The plea in par 10 is simply a general plea that the plaintiffs have suffered loss and damage, including special damages. It is not related in its terms or by its context to any claim for aggravated and exemplary damages. The plea in pars 4 and 6 that the second defendant spoke the words "falsely and maliciously" is not a sufficient basis for a claim for aggravated and exemplary damages. If the plaintiffs intend to allege express malice on the part of the defendants as the basis for that relief, then that needs to be pleaded separately and to be specifically related to the relief claimed. As it stands, the plea in each of those paragraphs is, or appears to be, on its face, simply the archaic form of pleading a publication in a defamation claim. In fact, "falsely and maliciously" in that context is surplusage, neither being an element of the plaintiffs' cause of action: Gatley, 10th ed par 26.10, Motel Holdings Ltd v Bulletin Newspaper Co Pty Ltd (1963) NSWR 1446, Singleton v Ffrench (1986) 5 NSWLR 425 per McHugh JA at 442, and should not be pleaded.

19 The third complaint by the defendants related to the claim for breach of confidence. It was submitted on behalf of the defendants that the statement of claim does not sufficiently identify the confidential information which the defendants allegedly disclosed in breach of their duty of confidence. The information is described in par 13 of the statement of claim as "internal financial and accounting records of WA Racing Services including but not limited to its trial balance as at 30 June 2002".

20 I do not consider this is a basis upon which the plea should be struck out. To the extent the defendants require further particulars of the information referred to, that can appropriately be dealt with by a request for further and better particulars of the plea.

21 Similarly, the defendants' complaint that the plea in par 16 of the statement of claim - that the second defendant "disclosed" that information to the Australian Taxation Office - is inadequate in that it does not sufficiently particularise the alleged disclosure is a matter that can adequately be dealt with by a request of further and better particulars.

22 I therefore declined to strike out the pleas in pars 13 and 16. I ordered that the pleas in pars 4 and 6 be struck out with leave to the plaintiffs to replead.