Rules of the Supreme Court 1971 (WA), O 66 r 1(1), O 20 r 13(6)

Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

1 The defendant applied for an order that the plaintiff pay the defendant's costs associated with its request of 27 January 2009 for further and better particulars of the statement of claim. The plaintiff opposes that order and seeks orders that the defendant pay the plaintiff's costs of and associated with the application upon an indemnity basis. The court directed that it would determine the question of costs after considering affidavits filed by the parties and their written submissions.

2 This action concerns three emails published by employees of the defendant in the course of their employment which the plaintiff alleges are defamatory of him. The plaintiff pleads that each of the emails give rise to imputations defamatory of him and which relate to his attitude and work performance. The first, second and third emails were sent by the Chief Executive Officer, the Director of Operations and the Engineering Services Manager of the defendant respectively.

3 In relation to each of the email publications it is pleaded that the defendant's employee published, in the course of his or her employment with the defendant, of and concerning the plaintiff the matters set out in the email. Three particulars are given of each publication. In [4(a)] it is pleaded that the first matter complained of was published electronically by email. In [4(b)] it is pleaded that the first matter complained of was published to certain named individuals. Paragraph 4(c) says that further particulars of the publication of the first matter complained of will be provided after discovery and interrogatories. Paragraphs 8 and 12 contain similar pleas in relation to the second and third matters complained of.

4 Paragraphs 16 - 19 of the statement of claim concern the alleged republication of the matters complained of. I will set them out in full:

1. Furthermore, the first matter complained and/or, the second matter complained of were published in circumstances where it was the natural and probable consequence that all or parts of those matters complained of would be re-published.
2. The first matter complained of has been republished various times since its publication.

The sense and substance of the first matter complained of was republished in an article entitled 'Irritation fires up Voelte', published in the West Australian newspaper on 6 December 2006. The plaintiff relies upon that republication as a separate cause of action and alleges that the imputations pleaded in paragraph 5A to 5F were republished to readers of that article.

1. The second matter complained of has been republished at various times since its publication.

The sense and substance of the second matter complained of was republished in an article entitled 'Voelte Gets Saintly Nod', published in the West Australian newspaper on 9 December 2006. The plaintiff relies upon that republication as a separate cause of action and alleges that the imputations pleaded in paragraphs 9A to 9H were republished to readers of that article.

1. By reason of the republication of the first and second matters complained of, the plaintiff has been brought into hatred, ridicule and contempt and has suffered and continues to suffer loss and damage to his reputation and injury to his feelings.

5 The statement of claim was filed on 8 March 2007. On 18 April 2007 the defendant filed its defence. The defendant admitted publishing each of the emails to the persons alleged by the plaintiff, except that the defendant does not admit publishing the second email to five of the persons to whom the plaintiff alleges it published the email. The defendant denied that the first and second matters complained of were published in circumstances where it was the natural and probable consequence that all or part of those matters would be republished. In relation to the alleged republication of the first and second matters complained of in The West Australian newspaper on 6 December 2006 and 9 December 2006 respectively, the defendant pleads that the republication was by an employee of the defendant, the identity of whom is unknown to the defendant, and such conduct was unlawful and contrary to the defendant's policies and procedures. Furthermore, the defendant denies that the pleaded imputations or any other meaning defamatory of the plaintiff are capable of arising from the republications. The defendant says that if the republications bore the pleaded imputations then the imputations are not defamatory or capable of being defamatory of the plaintiff. The defendant pleads qualified privilege, statutory qualified privilege pursuant to the Defamation Act 2005 (WA) s 30 and the statutory defence of triviality pursuant to Defamation Act s 33.

6 By letter of 26 November 2008 the plaintiff's solicitors referred to the defendant's solicitors estimated duration of the trial and invited the defendant's solicitors to provide a breakdown as to how the estimate of 10 days was arrived at. The defendant's solicitors replied by letter of 27 November 2008 stating that their estimate was made after a review of the statement of claim and in particular the plaintiff's publication claim. The defendant's solicitors wrote:

However we may be reading the statement of claim too widely. If the plaintiff's claim on the publication issue is a publication to those persons presently pleaded in the statement of claim, then issues such as vicarious liability, liability for the media publications and the defence of qualified privilege pleaded by our client could see the trial lasting for five days. We believe 3 days is simply not enough.

Please confirm that your client's claim for publication is in respect of the publication to those persons pleaded in the statement of claim.

7 The plaintiff's solicitor replied on 28 November 2008 stating:

For the avoidance of any doubt (not that there could properly be any), it is out client's case that:

1. The various publications in the newspapers were a natural and probable consequence of the publication of one or more of the matters complained of; and
2. The widespread re-publication of one or more of the matters complained of, as is evident from the additional 1,000+ documents discovered by your client, is also a natural and probable consequence of the publication of one or more of the matters complained of.

We are aware that your client denies the first of those matters and we are aware that your client alleges that any re-publication to the newspaper was by an employee of the defendant, the identity of whom is unknown and that such conduct was unlawful and contrary to your client's policies and procedures. We assume that your client will conduct a similar argument in relation to the second of those matters.

In short, we do not understand the rationale of your comments in relation to both 'vicarious liability and liability for media publications':

1. We assume that your client accepts that it is liable for the acts of Mr Voelte, Mr Santostefano and Miss Hackett, and indeed, we note that the defence does not plead otherwise; and
2. Your client has not raised any other matters in its defence as to any liability that it may have for the acts of its employees, other than to allege that re-publication to the newspaper was by an employee of your client, the identity of whom is unknown and that such conduct was unlawful and contrary to your client's policies and procedures.

By letter of 3 December 2008 the defendant's solicitors wrote:

There are two matters on which we wish to seek further clarification from your client. You say in your letter that:

'1. The various publications in the newspapers were a natural and probable consequence of the publication of one or more of the matters complained of'.

Please provide us with proper particulars of how the plaintiff says the publications in the newspaper were a natural and probable consequence of the publications of the defendant. Please also identify the 'various publications in the newspapers'. Please also identify which matters complained of the plaintiff is referring to.

You also say:

'2. The widespread re-publication of one or more of the matters complained of, as is evident from the additional 1,000 + documents discovered by your client, is also a natural and probable consequence of the publication of one or more of the matters complained of'.

This seems to be raising an entirely different case to the pleading of the plaintiff's case in the statement of claim.

Firstly, all of the additional emails should be particularised. The plaintiff ought to properly particularise each of the emails which are said to constitute re-publication as a result of the natural and probable consequence of the publication of the matters complained of. Otherwise the defendant does not know the case it has to meet.

Secondly, each of the matters complained need to be identified.

We look forward to hearing from you with regard to our request for further particulars.

8 On 4 December 2008 the plaintiff's solicitors responded by saying:

The various publications in the newspapers were a natural and probable consequence of the publication of one or more of the matters complained of

We note that this allegation has been pleaded in paragraphs 16, 17 and 18 of the statement of claim, and which was of course served in March 2007, some 21 months ago.

We note that your client has never previously requested particulars of that allegation.

In the circumstances, it is oppressive for your client to now request such particulars.

Notwithstanding that, and so as to not delay matters further, we provide some further particulars of that allegation:

1. All or parts of one or more of the matters complained of have been published or quoted in newspapers, particularly in The West Australian Newspaper.
2. It is alleged that newspapers, particularly The West Australian Newspaper, became aware of one of more of the matters complained of because:
   1. It or they were deliberately 'leaked' to the newspaper, by a person or persons whose identity or identities is or are unknown to the plaintiff; or
   2. The circulation or distribution, specifically the re-publication, of a copy or copies of one or more of the matters complained of was so widespread and so unfettered that it was inevitable or, at the least, likely that it or they would come to the attention of the newspaper.
3. It is alleged that in either of the circumstances referred to in paragraph 2 above, it was a natural and probable consequence that newspapers, particularly The West Australian Newspaper, would publish one or more of the matters complained of, or parts or extracts thereof. The matters published in the newspapers concerned the defendant, a major corporate enterprise in Western Australia and a significant employer in that State. The plaintiff also relies upon the fact that none of the matters complained of was endorsed with words 'not for further distribution', 'for the attention of the addressees only' or words to that effect or words to the effect that it was intended that the circulation or distribution of the matters complained of was to be limited.
4. At this time, the plaintiff is aware that one or more of the matters complained of has or have been published or quoted in The West Australian Newspaper on the following dates:

It appears that one or more of the matters complained of is also published or quoted on occasions when this matter is before the Court. In the circumstances, there is ongoing republication and the plaintiff alleges that such ongoing re-publication is a natural and probable consequence of the publications of the defendant.

Prior to final hearing, the plaintiff will undertake searches to try and identify other publications in which one or more of the matters complained of has or have been published or quoted.

Widespread republication being a natural and probable consequence of the publication of one or more of the matters complained of

It is accepted that such extensive republication has not been specifically pleaded in the statement of claim. At the time, our client was not aware, nor could he reasonably have been aware, of the extensive republication of one or more of the matters complained of.

That extensive republication only became apparent after your client discovered an additional 1,000+ documents, following the successful application made by our client to the Court. Those additional documents demonstrate the following:

1. That republication of one or more of the matters complained of was extensive.
2. That republication was not limited to employees of the defendant.

In short, our client will make a submission at the final hearing that republication was simply, to use a crude expression, 'out of control'. Our client alleges that such republications were a natural and probable consequence of the publications by your client and our client relies upon the same particulars as with the case of republication in the newspapers. Our client will also submit that your client intended that there should be such extensive republication or, at the least, was recklessly indifferent to that occurring.

In relation to the penultimate paragraph on page 1 of your letter, we do not agree. Our client relies upon the further documents discovered by your client and it is eminently clear from perusing those which e-mails contain all or parts of one or more of the matters complained of.

The documents relied upon by our client are your client's own documents.

Notice requiring further and better particulars

9 On 27 January 2009 the defendant filed and served a notice requiring the plaintiff to give the further and better particulars of the statement of claim requested in the notice. Request 1 asks for particulars of each person to whom the plaintiff alleges the first matter complained of was published, apart from the persons referred to in [4(b)]. Request 2 is that, if the plaintiff intends to allege a republication of the first matter complained of, the plaintiff provide particulars of each such republication. Request 3 asks the plaintiff to specify whether he will rely on each republication on the question of damages or intends to rely on each republication as a separate cause of action. Requests 4 - 6 and 7 - 9 request the same particulars in relation to the second and third matters complained of respectively.

10 Requests 10 and 11 relate to the republications pleaded by the plaintiff in [17] and [18] of the statement of claim. Request 10 asks the plaintiff to specify whether he intends to allege that the first, second or third matters complained of was republished in any newspaper or media publication other than the publications pleaded at [17] and [18] of the statement of claim. Request 11 is that, to the extent that particulars have not already been provided in the answers to request 1 - 9, the plaintiff specify in respect of each particularised newspaper republication a number of matters including which matter complained of was allegedly republished in each republication, matters relating to the defendant's alleged liability for the republication, and whether the plaintiff will rely on each newspaper republication on the question of damages or as a separate cause of action.

Defendant's response to notice requiring further and better particulars

11 The plaintiff declined to provide the further and better particulars requested by the defendant. On 17 March 2009 the court directed that the question of whether the plaintiff should provide the requested further and better particulars would be determined on written submissions and gave directions for the filing and service of submissions. On 24 March 2007 the defendant filed and served its written submissions.

12 On 27 March 2009 the plaintiff's solicitors, whilst denying that the plaintiff was obliged to provide the further and better particulars, voluntarily provided a response to the request for particulars. In response to requests 1, 4 and 7 the plaintiff said that he was not aware of any persons to whom the matters complained of were published except for the named persons. In response to requests 2, 5 and 8 the plaintiff gave particulars of matters relied upon in support of the allegation that the defendant was liable for the republication. In response to requests 3, 6 and 9 the plaintiff said that he relies upon the second and third matters complained of as separate causes of action and alleges that one or more of those matters complained of was republished in The West Australian newspaper and 'upon a widespread basis, primarily, as appears from the additional documents discovered by [the plaintiff], by way of email'. The plaintiff said that he could not state whether subsequent republications were republications of the first, second or third matter complained of but alleges that the republication of the first, second and/or third matter complained of in The West Australian newspaper and upon the widespread basis was a reasonable and foreseeable consequence of the publication of any or all of them. The plaintiff said that in respect of republications beyond the matters complained of, he will rely upon those republications on the question of damages. In relation to request 11, the plaintiff said that the only newspaper in which he alleged that one or more of the matters complained of was republished is The West Australian newspaper and gave particulars of matters relied upon to establish the defendant's liability for republication. Finally, the plaintiff said that he will rely on each newspaper publication on the question of damages.

13 The defendant was not fully satisfied by the plaintiff's response and wrote again on 1 April 2009 seeking clarification of two matters arising from the plaintiff's voluntary particulars. As to requests 2, 5 and 8 the defendant asked whether it is the plaintiff's case that in respect of each additional email discovered by the defendant that each email will be relied upon by the plaintiff as a republication and whether the recipient of each email is the named addressee? In relation to requests 3, 6 and 9 the defendant asked the plaintiff to confirm that the first, second and third matters complained of are relied on as separate causes of action and that all the additional emails discovered by the defendant will be relied on by the plaintiff as republications as to damages.

14 The plaintiff's solicitors replied on 7 April 2009. In relation to requests 2, 5 and 8 the plaintiff said that he will rely on each subsequent publication on the question of damages. In relation to requests 3, 6 and 9 the plaintiff confirmed that the first, second and third matters complained of are relied on as separate causes of action and that all the additional emails discovered by the defendant will be relied on by the plaintiff as republications as to damages.

15 The defendant's solicitors were satisfied with those responses and did not press for any further orders.

Legal principles in relation to costs orders

16 Subject to the express provisions of any statute and of the rules the costs of, and incidental to, all proceedings are in the discretion of the court but, without limiting the general discretion conferred on the court by the Supreme Court Act 1935 (WA), and subject to O 66 of the Rules of the Supreme Court 1971 (WA), the court will generally order that the successful party to any action or matter recover his costs: O 66 r 1(1). The principle applies to the costs of an interlocutory step in proceedings. However, the overriding principle of doing justice to the parties in each particular case dictates that a court is often unable at an interlocutory step in proceedings to determine who in justice should bear the costs of that step. That is why on interlocutory applications the costs are frequently ordered to be in the cause.

17 The principle that costs should follow the event applies to interlocutory matters as well as the final outcome of proceedings. However, it is not necessarily just that the costs of an interlocutory application should follow the result of that application. In some circumstances it may be just to make a costs order in any event. This may be so where a party makes an unsuccessful application that should not have been made or who seeks an indulgence or relief from consequences of his own default. Similarly, it may be just to make a costs order in favour of a party who makes a successful application based on a default committed by the opposing party.

18 Where an action is compromised before hearing, the parties having reached no agreement as to costs, the issue arises as to how the court should exercise its discretion in the absence of a hearing on the merits. In Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 McHugh J said (omitting citations):

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. A court cannot try a hypothetical action between the parties: Australian Securities Commission v Aust-Home Investments Ltd. To do so would burden the parties with the costs of a litigated action which by settlement or extra-currial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action: Australian Securities Commission v Aust-Home Investments ...

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried ...

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings (624 - 625).

19 The court is more likely to make a costs order in a compromised action where it finds that one party almost certainly would have succeeded had the matter reached judgment. In such a case the resolution of the action essentially vindicates the case advanced by one of the parties in the sense that one party has in effect capitulated to the other.

20 In an interlocutory matter it will often be easier for a court to determine which party would likely have succeeded had the matter been argued. Often an interlocutory application will be resolved by one party acceding to the request of the other. However, caution must be exercised because the respondent to an interlocutory application may often comply fully or partly with the moving parties' request for the purpose of avoiding further cost and delay rather than because the moving party is entitled to the matters requested. It is in the public interest that the court should facilitate the resolution of interlocutory disputes by the parties themselves. If the court were to order costs against a party who avoids an interlocutory hearing by voluntarily complying with a request from his opponent that would discourage parties from making concessions which avoided interlocutory hearings.

21 The defendant submits that it was entitled to the particulars and that the plaintiff unreasonably refused to answer the request for particulars. The defendant submits that the plaintiff acted unreasonably in initially refusing to answer the request for particulars.

22 The plaintiff says that the defendant was not entitled to the particulars requested because the defendant did not request the particulars within 30 days of the service of the statement of claim as required by O 20 r 13(6). Furthermore, the plaintiff says that the defendant knew the case it had to meet, or ought properly to have done so. The plaintiff submits, in effect, that the defendant's application arises from the defendant's own default and ought not to have been brought.

23 Order 20 r 13(6) provides that an order for particulars will not be made unless a written request has been filed and served within 30 days of the service of the relevant pleading or such other time as the court may allow. The court will exercise its discretion to extend the time in the light of the principles of case management. The defendant submits that the particulars were required in order that the defendant should know the case it has to meet and in particular whether the republications by email and in The West Australian newspaper, other than those particularised in the statement of claim, are relied upon by the plaintiff as a separate cause of action or as a matter going to damages.

24 It is arguable whether the plaintiff's pleading taken together with the plaintiff's solicitors' letter of 4 December 2008 was ambiguous in the sense that it was not clear whether the republications by email and in The West Australian newspaper, other than those particularised in the statement of claim, were relied upon as separate causes of action or as going only to damages. It is in the interests of efficient case management that that matter should be resolved prior to trial so as to facilitate the fair and efficient trial of the matter.

25 It is arguable whether the court would have extended the time for the defendant to make its request for further particulars under O 20 r 13(6). On the one hand the defendant did not make its request until 22 months after the service of the statement of claim and until after the action had been entered for trial. On the other hand, the plaintiff stated in his statement of claim that further particulars of publication would be given after the delivery of discovery and interrogatories. The plaintiff did not do so and did not say that no further particulars would be delivered. The delivery of the particulars is likely to facilitate the fair and efficient trial of the action.

26 It cannot be said that the defendant made an unsuccessful application that should not have been made. The plaintiff, in effect, conceded the application by voluntarily delivering the particulars requested. On the other hand, the defendant was, in part, seeking an indulgence or relief from the consequences of its own failure to bring the application within 30 days of the service of the statement of claim.

27 The request by the defendant and the delivery of particulars by the plaintiff is likely to facilitate the fair and efficient trial of the action. In all the circumstances, the justice of the situation is met by ordering that the costs of both parties be in the cause.