Plaintiff v Defendant

2 The plaintiff alleges eight defamatory imputations:

(a) The plaintiff engages in nepotism in relation to appointments of friends to the Board of the School (the 'Board');

(b) The plaintiff has been or is reasonably suspected of stealing School funds;

(c) The plaintiff is a bully in that he threatened and bullied his staff to keep them quiet and compliant for the purposes of a looming restructure;

(d) The plaintiff has lost the confidence of the vast majority of his staff;

(e) The plaintiff is responsible for a culture of systemic bullying at the School to such an extent that several past and present staff have lodged claims that warrant official investigation;

(f) The plaintiff is willing to misspend School funds on refurbishing an administration block so he can impress people attending a conference;

(g) The plaintiff is not a fit and proper person to be Principal of the School in that he is responsible for a climate of fear, bullying and harassment at the School which is disadvantaging the students;

(h) The plaintiff is not a fit and proper person to be Principal of the School in that he shifts blame for his wrongdoing onto others and gets others to do his dirty work, is a psychopathic bully and has bullied staff to such an extent that staff have swapped WorkSafe with claims that warrant investigation and the plaintiff's removal from office.

3 The plaintiff opposes the defendant's application for leave to file and serve an amended defence,[1] directing his objections to paragraphs 7B(ii), 7C, 11A, 11B, 11C, 13B and 17B of the amended defence. The plaintiff raises three issues in opposition to the amended defence:

(a) The honest opinion defence pleaded by the defendant pursuant to s 31(1) of the Defamation Act 2005 ('Act') in paragraph 7C in respect of imputation (a) is not based on proper material;

(b) The Hore-Lacy imputation relied upon by the defendant in paragraph 11A in respect of imputations (c) and (d) is substantially different to and more injurious than the imputation pleaded by the plaintiff; and

(c) The particulars in paragraphs 7B(ii) in respect of imputation (a), 11B and 11C in respect of imputations (c) and (d), 13B in respect of imputation (e) and 17B in respect of imputation (g) are inadequate.

4 For the following reasons, and subject to some amendment as set out below, I will grant leave to the defendant to file and serve the amended defence.

5 The plaintiff pleads that an imputation arises from the publication that the plaintiff engages in nepotism in relation to appointments of friends to the Board. In his amended defence, the defendant pleads a defence of honest opinion in relation to the meaning alleged by the plaintiff. The defendant relied upon the fact that the opinion related to a matter of public interest and was based on material that is substantially true, namely that a friend of the plaintiff who plays golf with him had been appointed to the Board. No issue is taken that 'nepotism' is inapposite when the appointee is not a relative or family member of the appointor.

6 The plaintiff contended that a defence of honest opinion on the basis that the mere fact that the plaintiff's friend was appointed to the Board exhibits no rational connection with the conduct of the plaintiff - engaging in nepotism in relation to that appointment. The plaintiff submitted, correctly, that any opinion must be based on proper material, such that there is a rational relationship between the material relied upon by the defendant and the imputation alleged by the plaintiff.[2] The plaintiff contended that the defendant's pleading fails to identify how the plaintiff had any involvement in that appointment and provided no proper basis for the opinion.

7 In response, the defendant submitted that the existing particulars were sufficient to give rise to an implication in the mind of the ordinary reasonable reader that the plaintiff's conduct led to the appointment of a Board member, which conduct exhibited nepotism. However the defendant accepted my suggestion that the objection fell away if he inserted into the particulars a cross-reference to the particulars to paragraph 7B and in that way included the allegation that Mr Tim Stone was appointed to the Board on the recommendation, or with the support of, the plaintiff.

8 It is quite clear, as was conceded by each of the parties in argument, that inserting that cross-reference is appropriate and eliminates the point in contention without the necessity to rule on the primary contentions. I reject this basis of opposition to leave to amend, conditional on that further amendment being made.

9 In paragraph 11A of its amended defence, the defendant pleads an alternate Hore-Lacy imputation in respect of the plaintiff's imputation in paragraph 11 of his statement of claim that the plaintiff is a bully in that he threatened and bullied his staff to keep them quiet and compliant for the purposes of a looming restructure. The defendant's alternate imputation simply omits the words 'for the purposes of a looming restructure'.

10 The plaintiff contended that the defamatory meaning pleaded by the defendant in this paragraph is not a permissible variant of the meaning pleaded by the plaintiff because the defendant's pleaded imputation is incapable of being found by jury not to be substantially different from the plaintiff's meaning.[3]

11 The following principles, drawn from Setka v Abbott & Anor,[4] are pertinent to the resolution of this issue:

(a) A defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he or she is seeking to set up and must accordingly state clearly and explicitly the meaning that is sought to be justified if it differs from that pleaded by the plaintiff.[5] That is because if the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined to the benefit of the court and the parties.

(b) Accordingly a defendant is able to plead a defamatory meaning which, viewed from the plaintiff's standpoint, and though not pleaded by the plaintiff, would be a permissible variant of the pleaded meaning.[6]

(c) To succeed at trial on a meaning which had not been pleaded, the alternate meaning alleged by the defendant must be 'not substantially different from and not more injurious than' the pleaded meanings.[7]

12 The plaintiff submitted that should the defendant be granted leave to plead the alternate imputation, the defendant would be allowed to raise false issues which would embarrass the fair trial of the action and unfairly prevent the plaintiff from pursuing a claim in defamation. The plaintiff argued that the omission of the words 'for the purposes of a looming restructure' will make admissible a substantial body of evidence that would otherwise be irrelevant and in that way greatly lengthen proceedings. The defendant would not be confined to adducing evidence at trial that only related to any bullying and threatening conduct that occurred in the context of and for the purposes of the looming restructure. Rather any bullying or threatening conduct, regardless of its purpose would be admissible. This, the plaintiff argued, will raise a much broader range of alleged bullying and threatening conduct to be considered, a factual basis that is substantially different from and more injurious than the plaintiff's pleaded meaning.

13 The defendant submitted the plaintiff's contention postulated 'a distinction without difference' when he sought to differentiate between the alternative imputations. The proper focus on the jury will be on the preceding words - 'to keep them quiet and compliant' - which state the purpose of the bullying conduct. The reference to the looming restructure that is the distinction between the alternate imputations merely added context, but could not make the alternate imputation substantially different from or more injurious than the imputation alleged by the plaintiff. The defendant disputed the plaintiff's contention that the alternate framing of the defendant's imputation in this manner would enable the defendant to led a substantially different body of evidence at trial. The same body of evidence will be relevant to the issue of threatening and bullying conduct to keep staff quiet and compliant, irrespective of whether 'the next looming restructure means more jobs are on the chopping block'.

14 The crux of this dispute is whether the defendant's alternate imputation is a permissible variant of the pleaded meaning that is not substantially different from and not more injurious than the pleaded meaning. For context, it is relevant to notice the four consecutive tweets comprising the publication from which the imputation arises were posted at the same time without interruption by any intervening tweet or response. The tweets read as follows:

... & he claims he's being bullied! We could have predicted this. Threaten people & avoid responding to the issue.

If the vast majority of staff would be appalled - put it to a secret ballot and find out who has confidence in him.

These threats are simply a tactic to try & keep staff quiet & compliant - while the next looming restructure...

... Means more jobs on the chopping block.

15 The tweets comprise a series because of the word limit rules applied by Twitter and it is fanciful not to expect a jury to join the tweets together as a single message when determining the issues arising from this particular publication. Doing so makes it clear that the bullying and threatening conduct is a tactic to try and keep staff quiet and compliant. Construing the publication is a matter for the jury at trial, but it is plainly open to the jury to regard the reference to 'the next looming restructure means more jobs on the chopping block' as peripheral context and the consequence of keeping staff quiet and compliant as the sting of the publication. Properly understood in context, the alternate imputation is not substantially different from plaintiff's pleaded imputation and neither is it more injurious. The imputation is that the plaintiff is a bully, equally injurious whether or not a restructure meaning more jobs were on the chopping block was looming.

16 The defendant will be permitted to plead the alternate meaning, as framed in its amended defence, as it does not introduce false issues, and is not substantially different from or more injurious than the meaning pleaded by the plaintiff. It falls well within the ambit of being a permissible variant of the plaintiff's imputation.

17 The plaintiff raised objections to the particulars pleaded in paragraphs 7B(ii) in respect of imputation (a), 11B and 11C in respect of imputations (c) and (d), 13B in respect of imputation (e) and 17B in respect of imputation (g).

18 First, the plaintiff argued that the particular pleaded in 7B(ii) should be struck out. The particular is as follows:

In around November 2014, at a school celebration evening with staff, senior school students and parents, the plaintiff made reference to Mr Stone being an old boy of the school and a golf professional. The plaintiff did not refer to any professional or business skills relevant to Mr Stone's role on the Board, from which it can be inferred that Mr Stone did not have the necessary skills for appointment to the Board.

19 The plaintiff submitted the particular is problematic because an inference cannot be drawn from the principal's failure to mention Mr Stone's skills and his lack of suitability for appointment to the Board at a school celebration a year after his appointment. The plaintiff contended that the earlier matters referred to, that of being an old boy and a golf professional, do give rise to the inference drawn by the defendant that Mr Stone did not have the necessary skills for appointment to the Board.

20 The defendant argued that the inference was available asserting, incorrectly in my view, that the particular alleges that the plaintiff was referring to the time of the appointment, and that what was omitted, Mr Stone's skills other that as a golfer, permitted the inference to be drawn.

21 I reject the defendant's submission and will strike out the following parts of the particular:

In around November 2014, at a school celebration evening with staff, senior school students and parents, the plaintiff made reference to Mr Stone being an old boy of the school and a golf professional. The plaintiff did not refer to any professional or business skills relevant to Mr Stone's role on the Board, from which it can be inferred that Mr Stone did not have the necessary skills for appointment to the Board.

The plaintiff conceded that it would no longer object to the particular if it were to be framed in this manner.

22 Second, the plaintiff argued that the particulars pleaded in paragraph 11B, particulars which are referred to and repeated in paragraphs 11C, 13B and 17B, impermissibly expand the issues defined by the plaintiff's pleadings, such that the defence directs enquiry at collateral issues,[8] and is liable to prejudice, embarrass or delay the fair trial of this proceeding. These particulars are of the incidents of the plaintiff's conduct towards staff and former staff by reference to which the plaintiff will advance a circumstantial case of bullying by the plaintiff.

23 The defendant submits that the plaintiff's submission fails to grasp that each of the incidents particularised is not collateral because the defendant is entitled to invite the jury to look at the totality of the evidence when determining whether individually or collectively the incidents alleged are capable of supporting the imputation that the plaintiff threatened and bullied staff to keep them quiet and compliant.

24 The plaintiff submitted that normal management practices within a school include making decisions about the structure of the School and the suitability of staff for employment, directing and controlling the way staff perform their duties and raising any performance issues with staff, confronting staff with accusations or complaints made against them and taking disciplinary action against staff. The discharge of proper managerial functions in a reasonable manner cannot be construed as bullying or threatening conduct, even if the conduct is upsetting to staff.

25 Threatening and bullying behaviour in the context of employment within, and administration of, a school need not be overt or obvious behaviour. It may be relatively covert or obscure in the sense on not being visible other than to the bully and the victim. Such behaviours can be complex and highly subjective. The Shorter Oxford English Dictionary defines 'bully' as to 'persecute, intimidate, oppress (physically or morally) by threats or superior force'.[9] The Court of Appeal, in Brown v Maurice Blackburn Cashman,[10] defined bullying as follows:

Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.

Within this definition:

Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten.

Behaviour includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.

Risk to health and safety includes risk to the mental or physical health of the employee.

26 I am satisfied that the proper characterisation of the particularised incidents is a matter for trial. If accepted as capable of being proved, as I must on this application, the particulars are well able to justify the pleaded Hore Lacy meaning. For instance, particular (iv) details how a performance review of a staff member of the School was conducted by the plaintiff in full view of other staff who were passing by; particular (v) details how a staff member was informed in a verbally aggressive manner by the plaintiff that her hours would be reduced; particular (vi) details how a staff member was berated and told by the plaintiff that her job was on the line because of spelling errors in a document produced by her; particular (x) details how a staff member was shouted at and warned by the plaintiff to think carefully about her reporting of an incident occurring on a School excursion and particular (xii) details an incident where the plaintiff glared through a window at a staff member while he was conducting a class after acting antagonistically towards him the prior evening.

27 Viewed in isolation, these incidents may not amount to bullying or threatening conduct, but the tribunal of fact must consider the inferences from all of the circumstances. The mosaic of circumstantial evidence relates to the material allegation and the particulars define the scope of the evidentiary matrix from which that allegation will be inferred. The inquiry of whether the matters are substantiated is irrelevant at this stage in the proceeding. It is sufficient that the matters may be substantiated on the basis of the evidence.

28 I accept the defendant's contention that the particulars sufficiently identify various incidents being relied on by the defendant to enable the plaintiff to understand the evidence that he will have to meet at trial. There has been the adequate identification of the issue about which evidence will be lead to establish the material allegation that is made in the pleadings sought to be particularised.

29 Counsel put submissions in respect of each paragraph of the particulars, but I do not propose to rule in each particular individually, save that the following parts of the particular (xi) must be struck out as a condition of leave to amend:

During 2013, over 20 staff confided in Reverend Peter Williams, the former School Chaplain of the school concerning their experiences of intimidation by the plaintiff. In around December 2013, Reverend Peter Williams resigned as School Chaplain of the Peninsula School due to concerns about the plaintiff's behaviour towards staff.

The implication that arises from particular (xi) - that the school chaplain accepted the information provided by these members of staff and resigned as a result of his concerns about the plaintiff's behaviour towards staff - is irrelevant to the enquiry in this proceeding. It is however relevant that over twenty members of staff confided in the school chaplain and I will permit the particulars to stand as amended. There may be issues at trial about the evidence to be led in support of the particular but the matter particularised has the capacity to contribute to a circumstantial case substantiating the defendant's defence.

30 Third, the plaintiff submitted that the particulars pleaded in paragraph 11C, particulars which are referred to and repeated in paragraph 17B, are incapable of substantiating the allegation that the plaintiff has lost the confidence of the vast majority of his staff. The plaintiff submitted that a series of alleged isolated incidents, and the cross reference is to the incidents of threatening and bullying just discussed, in the context of the management and administration of a large private school are incapable themselves of substantiating this allegation. The plaintiff further submitted that additional particular 11C(ii), that the plaintiff convened a meeting of teaching staff and informed them that the School needed to cut staff costs and that there would be staff losses, cannot demonstrate that the plaintiff had lost the confidence of the vast majority of his staff.

31 The plaintiff also submitted that the particulars must be confined to incidents affecting current staff. I reject this contention because the plaintiff's imputation does not materially qualify the word 'staff' and is capable of referring to former staff.

32 The justification defence that the defendant has pleaded again is to be established by inference in all of the circumstances and I reject the particular criticism offered by the plaintiff of these particulars on isolated consideration of each allegation separately. This defence is adequately particularised.

33 Fourth, the plaintiff submitted that the particulars pleaded in paragraph 13B, particulars which are referred to and repeated in paragraph 17B, are incapable of substantiating the allegation that the plaintiff is responsible for a culture of systemic bullying at the School to such an extent that several past and present staff have lodged claims that warrant official investigation. The defendant relies primarily on the particulars of threatening and bullying incidents particularised under paragraph 11B and already discussed. The defendant added references to a report of Dr Peter Holland and a letter written by Mr Paul McGuinness that were provided to the Board and the fact that the Australian Education Union was informed.

34 The plaintiff submitted these particulars do not support the allegation of a culture of systemic bullying for which the plaintiff was responsible bullying that resulted in claims being lodged, nor would it be permissible to draw this inference from evidence supporting these particulars.

35 Finally, the plaintiff submitted that the particulars of the allegation in paragraph 17B cannot substantiate the allegation that the plaintiff is not a fit and proper person to be principal of the School in that he is responsible for a climate of fear, bullying and harassment at the School which is disadvantaging the students. The plaintiff mounted this argument on the basis that no particulars were provided as to precisely what material facts would be led in evidence that would substantiate the allegations that a climate of fear developed and that the students have been disadvantaged.

36 The defendant submitted that the particulars contained in paragraphs 11C, 13B and 17B all raise matters for determination at trial and properly give notice of the issues to be the subject of evidence and confine the scope of that evidence relevantly to the material allegations being made. The defendant argued that the incidents outlined in the particulars are sufficient to justify the conduct of the plaintiff that he contends will justify the relevant imputations raised by those paragraphs of the defence respectively.

37 I agree with the defendant's contentions and as I have already noticed, the incidents alone may not amount to any significance, but together stronger inferences may be drawn. That observation denies any effective force to the plaintiff's contentions. The particulars discharge the function of putting the plaintiff on notice as to the evidence that he will need to lead to meet the defences taken to his claim. The particulars identify the parameters of the evidentiary matrix that will be relevant at trial to establish the defences pleaded by an inferential case. The proper characterisation of the plaintiff's behaviour on the particular occasions will be a question for evidence at trial. It is sufficient for present purposes that the particulars, irrespective of the evidence the plaintiff may bring in opposition to these particulars at trial, are capable of supporting the defendant's allegations.

38 Finally, the plaintiff objected that the defendant was impermissibly relying on discovery and interrogatories to perfect his plea of justification, by the statement 'further particulars of the above matters may be provided after discovery and interrogation'. It is well established that a defendant is required to properly particularise a plea of justification before a plaintiff is ordered to discover documents relevant to that plea.[11] That rule does not prevent a party from perfecting particulars previously provided following on interlocutory processes.

39 My observation in Sali v ABC & Ors[12] is pertinent.

In McDonald's Corporation v Steel, Neill LJ observed:

It is true that a pleader must not put a plea of justification (or indeed a plea of fraud) on the record lightly or without careful consideration of the evidence available or likely to become available. But, as counsel for the plaintiffs recognised in the course of the argument, there will be cases where, provided a plea of justification is properly particularised, a defendant will be entitled to seek support for his case from documents revealed in the course of discovery or from answers to interrogatories.

In my view, the defendants' conduct in respect of its pleadings, its particulars and its subpoenas cannot be regarded as abusing the court's processes by the use of inadequately particularised allegations or fishing expeditions.

40 The defendant is at liberty to provide further and better particulars following discovery and interrogatories in relation to existing particulars so as to refine the manner in which the allegations are to be substantiated.

41 I will order that leave be granted be granted to the defendant to file and serve the amended defence, subject to the insertion of a cross-reference in paragraph 7C referring to and repeating the particulars under paragraph 7B and specific sections of particulars 7B(ii) and 11B(xi) being struck from the proposed pleading as outlined in these reasons.

42 The proceeding is listed for orders and directions at 9:30 am on 29 July 2016.

[1] In the form of the proposed pleading exhibited to the affidavit of Jason Anton Frydman sworn 25 May 2016 as Exhibit JAF-5.

[2] Relying on Hanks v Johnston (No 2) [2016] VSC 149, [8] and Radio 2UE Sydney Pty Ltd & Anor v Goldsworthy [2000] NSWCA 130 (Mason P).

[3] The plaintiff relied on Setka v Abbott & Anor [2014] VSCA 287; (2014) 44 VR 352; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262; David Syme & Co Ltd v Hore-Lacy (2001) 1 VR 667; Templeton v Jones [1984] NZCA 14; [1984] 1 NZLR 448.

[4] [2014] VSCA 287; (2014) 44 VR 352.

[8] The plaintiff relied on Goldsmith v Sandilands [2002] HCA 31.

[9] William Trumble and Martin Brown (eds), Shorter Oxford English Dictionary (Oxford University Press, 5th ed, 2002), 305.

[10] (2013) 45 VR 22, [13] (Osborn JA, with Harper JA and Macaulay AJA in agreement). See also Swan v Monash Law Book Co-operative (t/as Legibook) [2013] VSC 326, [150] (Dixon J) and Johnson v Box Hill Institute of TAFE [2014] VSC 626, [211]-[212] (J Forrest J).

[11] Zierenberg v Labouchere [1893] 2 QB 183, 189-90 (Kay LJ); Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148; Arnold & Butler v Bottomley [1908] 2 KB 151; Goldschmidt v Constable [1937] 4 All ER 293; Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544, 551-2 (Hunt J); Bell v Kingsbay Pty Ltd [2001] VSC 388, [73] (Gillard J).

[12] [2013] VSC 719, [26] (citations omitted).