Hughes v ISPT Pty Ltd

[10] However on 12 December 2008 the plaintiff's legal representatives, perhaps with the limitation period in mind, abandoned their previous cautious stance, sought leave to amend and filed a Notice of Motion and an affidavit in support sworn by the plaintiff's solicitor, Mr Lam.

[11] The proposed amendments are as follows: "12. On or about 30 August 2007 the third defendant published a Notice containing words defamatory of the plaintiff which Notice is annexed hereto and marked with the letter 'D'. Particulars of Publication

The said Notice, and words to its substance and effects, were published to persons including staff and employees of Sisco, Security Personnel for Sisco, Staff and employees of Big W, Security Personnel for Big W, Staff and employees of Wagga Wagga Market Place, Security Personnel for Wagga Wagga Market Place and members of the public.

13. The said defamatory words in their natural and ordinary meaning were meant to convey and were understood to convey the following imputations: (i) that the plaintiff was prohibited from entering or remaining on the premises of Big W Discount Stores situated at Wagga Wagga; (ii) that the plaintiff so conducted herself as to warrant being prohibited from entering or remaining on the premises of Big W Discount Stores situated at Wagga Wagga; (iii) that the plaintiff had stolen from the Big W Discount Store no. 187 at Wagga Wagga; (iv) that the plaintiff was likely to steal from other Big W Discount Stores in Wagga Wagga;

14. On or about 30 August 2007 the second defendant published a Notice containing words defamatory of the plaintiff which Notice is annexed hereto and marked with the letter 'E'. Particulars of Publication

The said Notice, and words to its substance and effects, were published to persons including staff and employees of Sisco, Security Personnel for Sisco, Staff and employees of Big W, Security Personnel for Big W, Staff and employees of Wagga Wagga Market Place, Security Personnel for Wagga Wagga Market Place and members of the public.

15. The said defamatory words in their natural and ordinary meaning were meant to convey and were understood to convey the following imputations: (i) that the plaintiff is a shop lifter; (ii) that the plaintiff had stolen from Big W; (iii) that because of the incidents that the plaintiff had been involved in it was necessary to withdraw her privileges of entering the Wagga Wagga Marketplace Shopping Place for 12 months; (iv) that the plaintiff was prohibited from entering or remaining on the premises of Wagga Wagga Marketplace for 12 months; (v) That the plaintiff was likely to steal from shops in the Wagga Wagga Marketplace unless prohibited from entering; (vi) That the plaintiff has a propensity to steal.

On or about 30 August 2007 the third defendant published a Notice Prohibiting Entry of the plaintiff to the Big W Discount Stores situated at Wagga Wagga which Notice if annexed hereto and marked with the letter 'D':

The said Notice, and words to its substance and effects, were published to persons including staff and employees of Sisco, Security Personnel for Sisco, Staff and employees of Big W, Security Personnel for Big W, Staff and employees of Wagga Wagga Market Place, Security Personnel for Wagga Wagga Market Place and members of the public.

In the premises the third defendant made the following representations (the 'Representations'): (i) that the plaintiff had stolen from the Big W Discount Store at Wagga Wagga Market place; (ii) that the plaintiff's conduct warranted her being banned from all Big W Discount Stores situated at Wagga Wagga until revoked in writing by store management (iii) that the plaintiff is likely to steal again and therefore should be banned from all Big W Discount Stores situated in Wagga Wagga indefinitely; (iv) that the plaintiff is a shoplifter.

The said Representations were false and misleading in that: (i) the plaintiff had not stolen from the Big W Discount Store at Wagga Wagga Market place; (ii) the plaintiff had not conducted herself so as to warrant being banned from all Big W Discount Stores at Wagga Wagga indefinitely or at all; (iii) the third defendant had no reasonable basis at all for suspecting that the plaintiff had stolen anything from the Big W Discount store at Wagga Wagga Market place or that she was likely to steal from any of the Big W Discount Stores situated in Wagga Wagga; (iv) the plaintiff is not a shoplifter.

By making the said Representations the third defendant did, in trade or commerce, engage in conduct that was misleading or deceptive or that was likely to mislead or deceive contrary to the provisions of s. 52 Trade Practices Act (Cth).

The plaintiff further relies upon the provisions of s. 51A Trade Practices Act (Cth) in respect of representations (ii), (iii) and (iv).

On or about 30 August 2007 the second defendant published a Notice Prohibiting Entry of the plaintiff to the Wagga Wagga Marketplace which Notice is annexed hereto and marked with the letter 'E'. Particulars of Publication

The said Notice, and words to its substance and effects, were published to persons including staff and employees of Sisco, Security Personnel for Sisco, Staff and employees of Big W, Security Personnel for Big W, Staff and employees of Wagga Wagga Market Place, Security Personnel for Wagga Wagga Market Place and members of the public.

In the premises the second defendant made the following representations (the 'Representations'): (i) that the plaintiff had stolen from the Big W Discount Store at Wagga Wagga Market place; (ii) that the plaintiff's conducted warranted her being banned from Wagga Wagga Marketplace for 12 months; (iii) that the plaintiff was likely to steal from other shops in the Wagga Wagga Marketplace and therefore should be banned from the entire Shopping Centre for a period of 12 months; (iv) the plaintiff is a shoplifter.

The said Representations were false and misleading in that: (i) the plaintiff had not stolen from the Big W Discount Store at Wagga Wagga Market place; (ii) the plaintiff had not conducted herself so as to warrant being banned from Wagga Wagga Marketplace for 12 months; (iii) the third defendant had no reasonable basis at all for suspecting that the plaintiff had stolen anything from the Big W Discount store at Wagga Wagga Market place or that she was likely to steal from any of the stores at the Wagga Wagga Market place; (iv) the plaintiff is not a shoplifter.

By making the said Representations the second defendant did, in trade or commerce, engage in conduct that was misleading or deceptive or that was likely to mislead or deceive contrary to the provisions of s. 52 of the Trade Practices Act (Cth).

The plaintiff further relies upon the provisions of s. 51A of the Trade Practices Act (Cth) in respect of the representations (ii), (iii) and (iv)."

[12] The amendments do not affect the first defendant, who neither opposes nor consents to the amendments. The amendments are opposed by the second and third defendants who have provided me with written submissions. The bases for objection are: (i) The proposed amendments are caught by s 14B Limitation Act 1969 (NSW) and leave should not be granted. The second (but not the third) defendant also addresses the issue of whether s 65 Civil Procedure Act 2005 (NSW) applies.

(ii) The particulars of publication are insufficient and leave should not be granted because the defendants are severely prejudiced in that they do not know the case they will be required to meet: Lazarus v Deutche Lufthansa AG (1985) 1 NSWLR 188; as paragraphs 14 and 15 fall "well short of a prima facie case" leave to amend should be denied (second defendant's written submissions paragraph 23).

[13] The applications to strike out the pleading summarily or alternatively to refuse leave to amend raise the same legal issues concerning absolute privilege so I shall deal with both together.

[14] The court has power to strike out pleadings which are hopeless (Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 680) but it is a right that should be exercised sparingly and only in plain and obvious cases because it is a "draconian remedy" (McDonald's Corporation v Steel [1995] 3 All ER 615 per Neill LJ). Neill LJ went on to say: "I anticipate therefore that it will only be in a few cases where it will be possible to say at an interlocutory stage and before full discovery that a particular allegation is incapable of being proved" [at 623; emphasis given by Neill LJ].

[15] A similar view was expressed by the Court of Appeal in Ford v Nagle [2004] NSWCA 33. The preference is to give leave to amend the pleadings rather than to strike them out, particularly if there is a likelihood that the deficiencies can be remedied when the other party supplies the information to which the party with the incomplete or inadequate pleadings is entitled, as courts have noted many times (see, for example, Hasluck J in Vitale v Bednall [2000] WASC 207 at [15]).

[16] The question is, therefore, whether the publication as pleaded is so hopeless as to warrant being struck out.

[17] Where a plaintiff does not know the persons to whom the publication was made, or the extent of publication, the plaintiff must give a sufficient description so as to enable the circumstances and extent of publication to be identified.

[18] What is the situation where the plaintiff cannot identify the circumstances in which the defamatory words were published, but such information is within the knowledge of the defendant? In such cases the plaintiff must plead the circumstances as best as is possible, and await discovery and interrogatories as to the identity of the person or persons to whom the words were published: Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 166; Peck v la Valley [1929] 2 DLR 370; Paquette v Cruji (1970) 26 OR (2d) 294; Gatley, 11th ed., [28.7]. Paquette was cited with approval by Hunt J in Lazarus in holding that where a prima facie case of publication is established, the plaintiff is required to give the best particulars he or she can. Gatley at [28.7] notes that the court generally requires there to be uncontradicted evidence that publication has taken place, and in such circumstances may permit plaintiff to wait until discovery or the administering of interrogatories (see the cases discussed in Allister v Martindale (Supreme Court of Western Australia, Kennedy, Rowland and Owen JJ, 29 November 1995, unreported)).

[19] The crucial differences between the facts in Lazarus and the facts in this case are that in Lazarus the publication was a slander in circumstances where the persons who heard it were passengers or other persons whose identity was a matter of uncertainty to the defendant as well as the plaintiff. In the present case, the plaintiff received a copy of the matter complained of as it was addressed to her, and having found a copy in the second defendant's files she seeks to bring an action in relation to its publication to other persons, such as other shopkeepers in the mall. By reason of the uncontradicted evidence of the document's existence and the fact that the extent of publication falls within the knowledge of this defendant, this publication clearly falls within the exceptions discussed in Gatley and in Allister v Martindale, supra.

[20] The court will not entertain speculative actions, and in an appropriate case such as a slander (Lazarus at 194-5; Borella v Penfolds Wines Pty Ltd (1992) 7 WAR 492) will order the provision of names and addresses, in appropriate cases on oath.

[21] However, this is not such a case. There is a written document addressed to the plaintiff, and the circumstances in which it has been distributed to persons by this defendant is an issue about which the plaintiff cannot give further particulars until after discovery and interrogatories. Accordingly I do not propose to strike out the pleading.

[22] The third defendant brought an application objecting to the proposed amended statement of claim concerning paragraphs 12 and 13, on the basis that these fresh matters are caught by s 14B Limitation Act 1969. Section 56A Limitation Act 1969 provides that in any application for an extension of the one year period the Court must be satisfied it was not reasonable in the circumstances for the plaintiff to have commenced in time and the question is whether a sufficient explanation has been given for the failure to commence proceedings.

[23] According to the affidavit of Mr Timothy Lam sworn on 11 December 2008, and statements made by Mr Rasmussen in Court, the plaintiff knew of the banning order because of the circumstances in which it was acted upon, those circumstances being the events already set out in the existing statement of claim.

[24] By reason of the close connection between the written document that is the banning order and the causes of action already pleaded, this is a case to which the provision of s 65 Civil Procedure Act 2005 (not ss 64 and 65 of the Civil Liability Act 2002 (NSW), as erroneously stated by the third defendant in paragraph 6 of the written submissions) applies. I note that the second defendant neither opposes nor consents to the granting of an extension of the limitation period (second defendant's submissions, paragraph 5). This is because it is noted that s 65 of the Civil Procedure Act is applicable.

[25] I agree with the second defendant's submission that s 65 of the Civil Procedure Act applies and hence time may not need to be extended for amending the originating process. However, as I understand Mr Rasmussen's submissions, the plaintiff wants to protect her position by having an order for extension of time. Having regard to the plaintiff's reasons for not commencing proceedings in time, and in particular her reference to this publication in the original statement of claim, I would be of the view that a sufficient explanation has been proffered for delay in commencing proceedings in any event.

[26] Accordingly, I extend time for the filing and serving of the amended statement of claim attached to the affidavit of Mr Timothy Lam. By reason of that amended statement of claim having been attached in draft form to the notice of motion, I shall regard it as having been filed on that date, subject to the objections of the parties, and accordingly regard the statement of claim as having been filed and dispense with any requirement for service. I do so in order to ensure that the matter proceeds in an expeditious fashion.

[27] This brings me to the application for costs. There has been some delay in this matter. Some of it is the fault of the parties, some of it is the fault of the Court (this matter having been listed before the Judicial Registrar, who had to refer it back) and some of it is unexplained.

[28] The relevant dates are as follows. The proceedings were commenced on 27 August 2008 and came before me on 12 September and 24 October 2008. On 24 November 2008 the second defendant filed an application seeking a strike-out or summary dismissal which came before me on 12 December 2008, the date upon which it was fixed for directions by the Judicial Registrar. It is not clear how the matter came to be before the Registrar for the period October 2008 to January 2009.

[29] The first issue is the question of the costs on 12 December 2008. Each of the defendants made submissions about the costs thrown away. The second defendant helpfully summarises its case for costs as follows: "Put simply, the first defendant came to court on 12 December 2008 ready to argue the second defendant's notice of motion. By reason of the plaintiff's proposed amendments:

(a) that hearing did not take place; and (b) there is now no need for the first defendant to argue the matters it proposed to argue on 12 December 2008."

[30] It is submitted in those circumstances that the first defendant is entitled to the costs of and incidental to the hearing on 12 December.

[31] However, I note the orders of Judicial Registrar McDonald on 5 December 2008 were to order completion of service, in relation to the second defendant's notice of motion of 24 November 2008, by 11 December 2008 and fix directions with the remainder of the matter on 12 December 2008 at 9.00am before me. The Judicial Registrar notes that "subject to her Honour's orders on that day, the matter can be placed in the general motions list on the day or another Friday".

[32] This was in accordance with my orders of 24 October 2008, namely that the matter was stood over for further directions only to Friday, 12 December 2008.

[33] Thus, both the Judicial Registrar and myself had put the matter in for directions only, not for argument.

[34] While the defendants may have been ready to argue matters on 12 December 2008, the fact remains that it was put in the list for directions only. The plaintiff was entitled to make the changes that the plaintiff did, and the reason it was not possible to hear the second defendant's notice of motion on that day was that it was not fixed for hearing. In my view, the costs of the directions hearing on 12 December 2008 should be costs in the motion, but they should be costs in the motion for a directions hearing only.

[35] The motions were stood over for hearing to Friday, 6 February 2009. Effectively by this stage the second defendant's motion had been overtaken by events, as Mr Bova in his submissions of 9 March 2009 points out. This motion had been filed at a time when the only allegation against the second defendant was an allegation it was vicariously liable for shopping centre security personnel who were retained, employed or hired in circumstances where it transpired that that was erroneous. The statement of claim now asserts that the second defendant is vicariously liable by reason of the fact that it "directed, controlled and/or instructed the shopping centre security personnel" (paragraphs 2 and 5 of the revised amended statement of claim) which is of course in accordance with the principles for liability for publication as set out in Webb v Bloch (1928) 41 CLR 331.

[36] It is asserted that, if the statement of claim had not been so amended, the proper course would have been for the Court to order that the claim be dismissed and the second defendant relies upon Pacific Acceptance Corp Ltd v Thompson [1963] NSWR 56.

[37] A great deal of water has flown under the bridge since this decision was handed down in 1963. In the subsequent 45 years, substantial changes to procedure have resulted in the Civil Procedure Act, where the emphasis is upon "just, quick and cheap" resolution of disputes in accordance with ss 56-62 of the Civil Procedure Act.

[38] While I note the matters set out in paragraphs 11, 12, 13 and 14, the fact remains that, even if everything the defendant says about whether the staff were employed or not is correct, the likelihood that a court would exercise its summary jurisdiction to strike-out a statement of claim where there was a disputed issue of fact whether a defendant was employed or not is very low. Courts do not resolve disputed issues of fact on applications for summary judgment. The correct approach for the second defendant to take would have been to list this matter for trial on a separate question of law, as sometimes occurs in personal injury litigation where a defendant seeks to dispute an issue such as status as an employer. This was not done, and if there had been a bona fide dispute as to liability it would have required to be determined as a disputed issue of fact after hearing evidence.

[39] In the present case, that is not necessary, as the plaintiff has taken the more cautious approach of suing on the broader basis permitted by Webb v Bloch.

[40] A further issue to take into account in relation to costs is that the second defendant was very quick to file its notice of motion on 24 November. The matter had been in the Defamation List twice beforehand. The matters about which the second defendant complains concerning the extent to which the notice sent to the plaintiff was published to third parties by the second defendant are matters peculiarly within the knowledge of the second defendant relating to the organisation of its business affairs.

[41] Having noted this background, I now come to the costs of the motion of 6 February. The matter did not proceed on that day because, as Mr Dawson in his submissions of 6 March notes, it became clear that the issues affecting the first defendant on the second defendant's notice of motion had as a result of amendments fallen away.

[42] There is no doubt that it was necessary for the plaintiff to seek the indulgence of an extension of time, and that it was necessary to formulate the statement of claim so as to identify clearly the occasions upon which the publication was made and the extent of publication to the best of the plaintiff's knowledge. These are relevant issues on costs.

[43] The matter came before me on 6 March when the parties informed me that, apart from the identification issue, all other issues had been resolved (although the degree of acceptance by the third defendant of the entitlement of the plaintiff to bring the claim out of time was still pressed, although faintly) and all that remained was the issue of costs. I directed the parties to provide submissions on costs and I have now read those submissions.

[44] When a plaintiff brings an application to commence proceedings out of time, the general rule is that the plaintiff, who is seeking an indulgence, should pay the costs thrown away. Where there is a sensible response by defendants to such an application, that is particularly the case, as defendants should not be penalised for reasonable conduct and saving the Court's time, as this is the purpose of s 56 Civil Procedure Act.

[45] In addition, the statement of claim was not felicitously drafted, and substantial amendments were needed in order to particularise publication. While I am not prepared to strike out those particulars or the statement of claim, those particulars will almost certainly require redrafting after discovery and interrogatories.

[46] Taking all of the above into account, the plaintiff should pay the costs of the defendants' motions (including appearances by all defendants, whether they were parties to these or not), the hearing dates for which were 6 February and 6 March 2009. Those costs should be paid on a party/party basis and are payable at the end of the hearing.

[47] I note the request of the second defendant for those costs to be payable forthwith. That is an order that the Court reserves for occasions when there has been contumelious disregard for court orders, as opposed to grappling with difficulties of precise drafting in circumstances where the factual basis was not something within the plaintiff's knowledge. I have indicated in other judgments on costs (e.g. Goldberg v Randel (No 2) [2008] NSWDC 283) that accumulation of costs orders should not stand in the way of the parties getting the matter ready for hearing. That would be contrary to the intentions of s 56 Civil Procedure Act.

[48] In exercising my unfettered discretion as to costs, I take into account the warnings of the South Australian Court of Appeal in Cretazzo v Lombardi (1975) 13 SASR 4. In particular, I am not prepared to unscramble the omelette so as to ascertain which costs related to which matter. Indeed, the defendants were able to deal with some other matters on these occasions, such as the third defendant's foreshadowed request for a person who had not answered a subpoena to be dealt with for contempt. However, the appropriate order is that the plaintiff pay the defendants' costs of the directions hearings before myself and the Judicial Registrar on 5 and 12 December 2008 and listing of the matter for argument on 6 February and 6 March 2009 on a party/party basis.

(1) Second defendant's application to refuse leave to amend and to strike out statement of claim for inadequate particulars dismissed. (2) Grant leave to the plaintiff to commence proceedings out of time pursuant to s 56A Limitation Act 1969 to 11 December 2008 in relation to the causes of action set out in paragraphs 12 and 13 of the proposed amended statement of claim attached to the affidavit of Timothy Lam sworn 11 December 2008, and deem the filing of this affidavit as sufficient to comply with the requirements for filing of the amended statement of claim. (3) Plaintiff pay the defendants' costs of the defendants' motions, the directions hearings of 5 and 12 December 2008 and the argument on 6 February and 6 March 2009 and any other costs thrown away by reason of the amendments. (4) Second defendant's application for such costs to be payable forthwith dismissed. (5) Parties have leave to bring in short minutes of order for a timetable for these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.