King v Linney

King v Linney - [2010] NSWSC 342 - NSWSC 2010 case summary — Zoe

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HISTORY HAS PROVEN THIS. YOU INFORM THOSE FOOLS YOU REPRESENT TO GET A LIFE. Don't forget that Brendon and Wendy both threatened to assault me in my own yard. (11-09-05) Twice. (If you don't belt him I will) Let's see how good their memory is with that if we end up in court." The imputations issue 5 This is an application pursuant to UCPR 14.28. The plaintiffs contend that the published material conveys imputations that are defamatory of them, that each plaintiff was or both of them were criminals, bad neighbours, bad citizens and that they damaged property belonging to other people. These imputations are pleaded in paragraphs 4(a) to 4(d) inclusive of the statement of claim. Paragraph 4(e) of the statement of claim is no longer pressed. By their notice of motion filed 10 June 2009 the defendants seek to strike out the whole of paragraph 4 upon the basis that it fails to disclose a reasonable cause of action and has a tendency to cause prejudice, embarrassment or delay. The defendants' contention is that the pleaded imputations are not capable of arising from the matters complained of. 6 The defendants relied upon cases such as Amalgamated Television Services Pty Ltd v Marsden [1997] NSWCA 17; (1998) 43 NSWLR 158 at 164-167, Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19] - [20], John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [23], [26] and [181] and Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716. In Holmes v Fraser [2008] NSWSC 570 at [23] - [27], Simpson J helpfully summarised the position as follows: "[23] The approach to determining whether a publication is capable of conveying the imputations pleaded was comprehensively stated by Hunt CJ at CL, (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-167. Marsden was decided in a context in which a judge decided issues of capacity to convey or to defame but a jury decided whether a publication in fact conveyed the imputation or imputations, and whether the publication of the imputation or imputations in fact defamed the plaintiff. Although the distinction is not so stark in circumstances where all issues are decided by a judge it is, nevertheless, a real and relevant distinction. The principles stated in Marsden adapt readily to determination of whether the publication does, in fact, convey the imputation.

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(ii) otherwise - a translation of the text of the original publication." 9 The fifth matter complained of has not been particularised in a way that identifies which parts of the letter are said to give rise to the various imputations pleaded, contrary to rule 15.19(1)(e). Rule 15.19(1)(d) has not been complied with in all respects. 10 I observe that none of the first three matters complained of refers to the plaintiffs as criminals, bad neighbours or bad citizens. These words are not used and no cognate expressions are used in their place. The second and third matters complained of are almost anodyne in content and otherwise do not specify their intended target. The plaintiffs are not named or identified and are unidentifiable by reference to the published matter. Moreover, the plaintiffs allege that each and every one of the matters complained of conveyed each imputation and all of the imputations. That is said by the defendants to be bad in form because each publication is a separate cause of action and therefore the meanings that are said to arise from each publication should be pleaded separately in distinct paragraphs. The defendants contend that the current pleading is embarrassing and liable to cause confusion. They submit that each imputation should be struck out. 11 I agree. There is no way of knowing what part of which publication is said to give rise to each of the pleaded imputations. Some of them are clearly incapable of doing so alone. For example, a publication of the words "Another act of 67" appears on one view to be incapable of conveying any defamatory imputation, let alone any of the imputations pleaded by the plaintiffs. It may be for this reason that the plaintiffs have purported in an omnibus fashion to plead in paragraph 4 that "[e]ach and every one of the respective aforesaid matters complained of in each of the aforesaid respective publications referred to in paragraph 3 herein conveyed each and all of the following imputations, each of which such imputation was defamatory of each of the first and second plaintiffs respectively". Having regard to the very limited nature of the first four matters complained of, and to the contrast with the dense and lengthy nature of the fifth matter complained of, this form of pleading is wholly bad and cannot stand. The plaintiffs' obligation to comply with UCPR 15.19(1)(e) in respect of the fifth matter complained of is very clear and the defendants' complaints about the plaintiffs' failure to do so after requests that it be complied with are well founded. 12 Compliance with UCPR 15.19(1)(d) is no mere formality. Only the fourth matter complained of mentions the first plaintiff by her full name. The second plaintiff is never mentioned by his full name in any of the matters complained of. The fifth matter complained of mentions the first plaintiff's name in full but only the second plaintiff's first name. The rule has work to do in this case and should have been complied with. 13 I also consider that the reasoning process required to connect the matters complained of to the imputations that are said to arise from them follows a strained and tortuous path. It requires at least the drawing of an inference based upon inference, if not some detective work as well. The defendants should not be required to do this and should not be placed in a position where the allegations against them are as uncertain and ill defined as they are in the present case. 14 In my opinion the whole of paragraph 4 should be stuck out. The particulars issue 15 The second prayer for relief in the defendants' notice of motion filed on 10 June 2009 seeks an order that within 14 days the plaintiffs serve further particulars of the statement of claim in answer to the defendants' request by letter dated 29 May 2009. The letter is eight pages long and contains 53 separate requests. The letter was not answered by the provision of the particulars that were sought when the plaintiffs' solicitor replied on 2 June 2009 so the defendants' solicitor wrote again on the same day in the following relevant terms: "In acknowledging the criticisms that you have made, we also reiterate that, in our clients' submission, the amended statement of claim pleads imputations that are not reasonably capable of arising and, further, it pleads allegations that are inadequately particularised, thereby entitling our clients to further particulars." 16 By a letter dated 3 June 2009 the solicitor for the defendants wrote to the solicitor for the plaintiffs in these relevant terms: "We note that it has been asserted that requests for particulars, presumably of the amended statement of claim, have previously been served, and presumably responded to.

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We are seeking further instructions from our clients and anticipate being able to update the court by the directions hearing on 16.7.09." 19 It would appear that this did not happen. The particulars requested were not provided. Instead, the plaintiffs' counsel produced submissions dated 28 August 2009 to which is attached a document described in handwritten words as "Additional Particulars". It is otherwise described as a list of events for dates underlined in the amended statement of claim. It is too long to reproduce here but is in any event not an answer to the request for particulars that the defendants made. It looks very much instead like a document that may have been prepared by the plaintiffs and provided by them to their solicitor as and by way of instructions from which an answer to the defendants' request for particulars could be crafted. It is on another level wholly irrelevant and can be ignored. 20 The most intriguing aspect of this somewhat sterile dispute is why the solicitor for the plaintiffs did not simply answer the defendants' requests as best they could or object to doing so if that is what they proposed to do. Nothing could have been simpler. Instead there developed a series of letters to-ing and fro-ing to no good end and with no tangible result. Costs were generated but progress was not. The defendants press for their answers and no reason why they should not be provided has emerged. They should be provided in full now unless the fate of paragraph 4 of the statement of claim renders any of the requests irrelevant or unnecessary. The notice to produce issue 21 The plaintiffs served a notice to produce upon the solicitor for the defendants. It was addressed to him personally rather than to the defendants. The defendants took the point that the notice was for that reason invalid or ineffective and sought to have the plaintiffs withdraw it. The issue for consideration is who should pay the costs of that dispute. 22 By letter dated 13 July 2009 the solicitor for the defendants wrote to the solicitor for the plaintiffs concerning the notice to produce in the following relevant terms: "We acknowledge receipt of the notice to produce faxed by you to us at about 5.16 pm last Friday.

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(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced." 26 The defendants' approach to the matter is technically correct. They rely upon the rules and referred to them in correspondence with the plaintiffs' solicitor concerning this dispute. However, the rules are also framed in the context of the Civil Procedure Act 2005 to which all litigants are required to have regard. Section 56 is pertinent. I am asked to adjudicate upon the issue of costs generated by a misdirected notice to produce. No argument was raised concerning its content or its relevance. A letter asking that it be redrawn and addressed to the defendants, or suggesting that it be treated as if it had been directed to the defendants, would in all likelihood have obviated the debate that occurred and would have avoided the incurring of the associated costs. 27 There is in my opinion considerable tension between the obligation to deal with matters justly, quickly and cheaply on the one hand and an overly technical insistence on form and the assertion of rights without good cause, or where a more conciliatory, not to say commonsense, approach is indicated, on the other hand. Forms should be our servants, not our masters. There is nothing to indicate that the defendants would have been disadvantaged or prejudiced by approaching the matter in the way I have suggested, or in some similar fashion. I consider that the days have long since passed when practitioners were entitled to expend time and incur costs, which they seek ultimately to inflict upon another party, when it is clear that a moment's reflection upon the overriding purpose would indicate a different, more efficient, approach was called for. That is what should have happened in this case. 28 I consider that there should be no order for costs made concerning this issue. The challenge to the retainer issue 29 The plaintiffs sought at one time to enjoin the defendants' solicitor from representing them further in these proceedings upon the basis that the plaintiffs had earlier retained him for legal advice about the matter and that he had become possessed of confidential information and was in those circumstances confronted with an irreconcilable conflict of interest. Before the plaintiffs withdrew their challenge to the retainer of the defendants' solicitor, the defendants had incurred costs resisting it. They seek an order that these costs be paid by the plaintiffs. 30 The defendants submitted that the application to restrain their solicitor from acting for them was ill founded and misconceived from the start. They rely upon what was said by Barrett J in UTi (Aust) Pty Ltd v The Partners of Piper Alderman [2008] NSWSC 219 at [29] as follows: "Possible foundations of injunctive relief

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· The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [ Black v Taylor; Bowen v Stott ]." 34 The defendants contend that there was no evidence to suggest that enjoining their solicitor would be in the interests of justice or necessary to protect the integrity of the judicial process. They submit that the evidence is to the contrary because such an order would deprive them of their choice of solicitor and would also cause them financial loss by reason of the costs that they have already incurred. Appointing a new solicitor would necessarily lead to duplication of some work already done by their present solicitor. 35 The defendants also contend that the withdrawal of the challenge to the retainer itself bespeaks the futility of the challenge, which in turn informs the outcome of any argument about who should bear the costs of the issue. The plaintiffs on the contrary contend that their decision to abandon the challenge to the solicitor's retainer was prompted by an affidavit sworn by the solicitor for the defendants on 2 September 2009, which corrected what are referred to as "incorrect statements in [his] previous affidavit", and which made it clear to the plaintiffs for the first time that their application should be reconsidered. The burden of this submission is that the plaintiffs would not have sought to challenge the retainer if the defendants' solicitor had provided them with the correct information in the first place. 36 There was correspondence about this issue. By letter dated 29 June 2009 the solicitor for the plaintiffs wrote to the solicitor for the defendants as follows: "2. We have also been instructed this morning (28.6.09) by the plaintiffs to challenge your firm's retainer for the defendants. We are instructed that the plaintiffs first became aware, from your letter to us dated 29.5.09 seeking particulars, that they previously sought, and obtained, confidential legal advice from Mr Goldsmith in the matter relating to the current dispute between the parties. More particularly, we are instructed that:

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Wendy King & Brendan Murphy" 38 It is apparent that the plaintiffs sought and received this advice from the solicitor. The communication was limited, preliminary and is arguably uncontroversial. It does not purport to deal with the provision or receipt of confidential advice. More importantly, the email and the response to it had been in the plaintiffs' possession for a considerable period of time before they commenced the proceedings and well before the defendants' current solicitor was retained. There is no confidential information given by the plaintiffs to that solicitor in the email in question, and certainly no information that the plaintiffs have not otherwise revealed as part of the case that they now wish to prosecute against the defendants. Whatever wisdom provoked the application to challenge the retainer of the defendants' solicitor, the plaintiffs ultimately recognised that it was ill founded and belatedly withdrew it. Nothing that the solicitor revealed in his correcting affidavit appears to me to be actually related to the decision to abandon the challenge, which was never likely to succeed and should not have been mounted. 39 It is apparent that the defendants incurred costs in resisting the plaintiffs' application. The costs would appear to be relatively limited. Be that as it may, the plaintiffs should pay those costs. The reserved costs issue 40 The defendants' former solicitor acted for them from at least 18 April 2008 until 11 May 2009. The defendants failed to comply with directions and costs of directions hearings on 12 March 2009 and 16 April 2009 were reserved. The defendants' former solicitor swore an affidavit on 16 April 2009 and at the directions hearing on that date Registrar Bradford directed the defendants to provide a further affidavit as to the conduct of the case by the defendants. However, before that happened, those solicitors ceased to act for the defendants. The defendants' current solicitor has been unable to obtain their file from his predecessor and the reserved costs issue remains unresolved. 41 Despite the plaintiffs' submissions I do not feel that I am yet possessed of sufficient information to resolve this issue. The defendants ought to be given the opportunity to respond to the plaintiffs' claim, that they pay these costs, in an informed fashion. It is not sufficient protection for the defendants simply to reserve some liberty to them to proceed personally against their former solicitor for an indemnity, or similar, in respect of costs that they may have been ordered to pay. I consider that the costs will have to remain reserved until more information becomes available. There does not appear to be an overwhelming urgency for this issue to be resolved and the plaintiffs cannot realistically complain that they are prejudiced by any delay that may be associated with the resolution of this question. Orders 42 In all of these circumstances I make the following orders: 1. Order that paragraph 4 of the statement of claim be struck out.

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