STRASBERG v WESTFIELD LIMITED

• 10 - DJL: 2 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list

20867 OF 2001 MARIE-ANN STRASBERG (Plaintiff)

WESTFIELD LIMITED t/as WESTFIELD HORNSBY (Defendant)

JUDGMENT ( Imputations - generalised - aggravated damages - particulars - false imprisonment - pleading - SCR Pt16 r3) 1 Consequent upon my judgment of 26 April this year ([2002] NSWSC 340), the plaintiff, on 14 May, filed a Further Amended Statement of Claim (FASC) pleading causes of action in defamation and false imprisonment. The defendant moves the Court for a variety of orders. An affidavit of Peter Stuart Speed sworn 24 July 2002 was read; annexed to it is an exchange of correspondence in relation to further and better particulars. 2 The imputations pleaded by the plaintiff are, in relation to the first matter: "4(a) The plaintiff dressed in such an inappropriate manner that complaints were made against her. (b) The plaintiff dressed in such a provocative manner that complaints were made against her. 6(a) The plaintiff dressed in such an inappropriate manner that she caused complaints". 3 The defendant does not object to these imputations save to the extent that they might be understood to impute a general condition as opposed to an incident specific act. It is contended that the difficulty with these imputations would be overcome if each was amended to read: "The plaintiff was dressed…" 4 Counsel for the plaintiff argued that this matter had in fact been determined by me in my earlier judgment. This is not so. Upon an analysis of what occurred leading thereto, no order was made pursuant to Pt 31 r 2 for the preliminary determination of that question of law, namely capacity. Counsel for the plaintiff also indicated that it was his understanding that the imputations presently drafted were "incident specific", but would make no concession in that regard. Accordingly it is appropriate that an order be made for the separate determination of the issue of law pursuant to Pt 31 r 2 and I so order. It is inevitable that on the question of capacity the imputations cannot be held reasonably to be carried. The publications complained of are "incident specific" and are incapable of supporting any imputation as presently drawn which lends itself to characterisation as an imputation of general application (Singleton v John Fairfax and Sons Ltd, Hunt J, unreported, 20 February 1980; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 455F; Warren v Tweed Shire Council [2002] NSWSC 211 at [20] per Levine J). 5 Accordingly, I hold that the matters complained of are incapable of carrying imputations 4(a), (b) and 6(a). The defendant is entitled to a verdict in relation to each of those causes of action pursuant to s7A(2)(a) of the Defamation Act. The plaintiff will be granted leave to file fresh imputations of the kind to which reference has been made above. 6 I add that in the course of submissions Mr Evatt made passing reference to the judgment of the Court of Appeal in Nominal Defendant v Manning (2000) 50 NSWLR 139. I need say no more than that case on its facts and in the application of principle (two applications for an extension of a limitation period), has little bearing, if any at all, on the question whether an order should be made under SCR Pt 31 r 2 in circumstances where the application the subject of my earlier judgment did not concern the operation of that rule nor the matters to which the defendant has sought to have, and successfully, considered pursuant to it. 7 The next subject matter of dispute was the particulars of identification in relation to the third matter complained of, (the "internal letter") published by the defendant to the retailers in the shopping centre. In that matter complained of a person by the name of "Marianne Schwartz" is referred to. The action is brought in the name of "Marie-Ann Strasberg". Thus the onus is on the plaintiff to prove that the matter complained of was published of and concerning her. The following particulars of identification are provided: "(a) The plaintiff was known by her first name Marie-Ann. (b) The name Schwartz may have been the maiden name of the plaintiff or a mistake. (c) The plaintiff was apprehended by a Westfield security officer for wearing a mini skirt. (d) There was an article in "The Daily Telegraph" of 29 September 2001 about the incident involving Westfield Management and the plaintiff's mini skirt. The article referred to customer complaints about the plaintiff's mini skirt and there was a photograph of her wearing the mini skirt in the article. (e) The plaintiff was a customer of shops in the Westfield Hornsby Shopping Centre and was known to retailers in the shopping centre; and (f) The plaintiff appeared on the television programme "A Current Affair" on Channel Nine which depicted her and various Westfield Security guards and related the incident where the plaintiff was apprehended and cautioned for wearing a mini skirt."

8 The correspondence as to particulars annexed to Mr Speed's affidavit provides confirmation by the plaintiff that the four persons named in the FASC identified the plaintiff and knew each of the matters particularised. 9 Chronology is important. Events giving rise to the first and second matter complained of (and the foundation for the alleged cause of action in false imprisonment) occurred on 27 September 2001. The "Daily Telegraph" article was published two days later on 29 September 2001 and names the plaintiff. Next, there was publication of the third matter complained of on 2 October, some three days after the "Daily Telegraph" article. There is reference in the third matter complained of to the "Daily Telegraph" and "A Current Affair" (and it must be inferred that it is that article to which reference is being made). It is to be understood that "A Current Affair", the subject matter of the third matter complained of, went to air on the evening of 2 October. 10 Further, as became clear in the course of submissions, the plaintiff will be relying on the various matters particularised as being known to each of or any one of the relevant identified witnesses. This clarification renders otiose a lot of the objections the defendant has taken to what otherwise might be the generalised nature of the particulars. By way of example, it will be the evidence of witnesses, as I understand it, that that witness understood the third matter complained of in its reference to "Schwartz" as having been a reference to the maiden name of the plaintiff or a mistake. It is not a speculative stand-alone fact. As to the plaintiff being "a customer", the witness will say that the plaintiff was known to the witness as a customer of the shops in the shopping centre and to retailers. 11 In relation to the article in the "Daily Telegraph", it was published two to three days before the third matter complained of and, critically, was referred to in that matter complained of. In those circumstances the concession rightly made for the defendant that the plaintiff in principle can rely on that "third party" identification is correct. 12 The interesting matter arising arises in relation to "A Current Affair". This was a "third party" publication on the same day as the third matter complained of. The issue is whether or not that publication by the third party television station falls in what is described as the extension to the principle in Hayward v Thompson [1982] QB 47 enunciated by Hunt J in Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 97-98. 13 In Baltinos his Honour was concerned with a publication subsequent to the matter complained of, and for which the defendant was not responsible, where the ordinary reasonable reader would understand the matter complained of, which did not identify the plaintiff, as inviting that reader to identify the plaintiff by reference to the subsequent publication. Further, the publication sued upon carried a defamatory sting, which was republished in the subsequent publication with identification of the plaintiff. This is almost the situation here. Assuming it to be the fact that the third matter complained of carries the defamatory sting, it is apparent from the terms of that publication itself that the anticipated television broadcast first, by reason of it being "biased" for example, would carry the defamatory sting in the matter sued upon and second, would in fact identify the plaintiff. Does that difference preclude what I will describe as the Baltinos principle operating in these circumstances? 14 The text of the third matter complained of is as follows: "2 October 2001 Retailer Update A Current Affair This evening's edition of A Current Affair will feature Marianne Schwartz and her inappropriate dress standards. This bias [sic] account of Marianne's encounter with Westfield centre management neglects to explain her unfavourable intentions. Westfield has unwillingly been used by Marianne as a vehicle to promote her modelling and Cadillac advertising business. Marianne has pursued the story with 2UE , the Daily Telegraph and A Current Affair to publicise her business at Westfield's expense. The story also fails to mention that Westfield security at no time asked Marianne to leave the centre. She was simply informed that centre management had received five customer and three retailer complaints regarding her attire. Westfield Hornsby has chosen not to comment on this issue and will continue to adopt this stance with the media. Please refer all customers to Tasma Boyd at centre management on 9477 5111".

15 It can be seen that this publication is not an express invitation of the kind with which Hunt J was concerned in Baltinos. On the other hand, in my view, the inevitable inference to be drawn is that the recipient of the defendant's publication would watch the program in which the person described as Marianne Schwartz would be identified as the plaintiff. The matter complained of by its terms (especially the customer inquiry reference at the end), contains a sufficient nexus with the publication on television on the same day to enable it to fall within the Baltinos principle. 16 Accordingly, the defendant's objections to the particulars of identification are unsuccessful. 17 The defendant seeks to have struck out the particulars of aggravated damages to the extent that in the FASC it is contended that the conduct of the defendant was lacking in bona fides, improper and unjustifiable. It is said that this allegation is embarrassing. Further particularisation was requested by letter of 27 May 2002 generating the response that the conduct of the defendant, its servants and agents was the conduct alleged in the FASC. The plaintiff has failed further to particularise, it is said, the basis upon which the allegation is made of the lack of bona fides and that the conduct was improper and unjustifiable. 18 I propose to strike out that sentence from the particulars. The plaintiff will be entitled further to particularise any such claim for aggravated damages. She must make it quite clear in relation to the specified conduct what it was about it that rendered it "lacking in bona fides", "improper" or "unjustifiable". Is the plaintiff to refer specifically to a "state of mind" in the defendant by its servants and agents? If so it should be identified and the facts to be supported by evidence particularised. In the ritual exchange of correspondence as to particulars I can state that as far as I am concerned, that in the conduct of defamation actions, the formula "it is otherwise a matter of evidence" is one behind which a party can no longer be confident in seeking refuge. 19 The remaining matters are concerned principally with the pleading of the case of false imprisonment. 20 In my judgment of 20 February 2002, at paragraph [41] I set out the requirements in the plaintiff in properly pleading and particularising the allegation of this intentional tort (it being a species of trespass to the person). 21 The FASC provides some more factual content as to what is alleged to have occurred at the shopping centre. A narrative of events seems to be: Rebecca Remoundis said to the plaintiff: "There have been complaints made about you. You are dressed in a provocative manner. You are dressed inappropriately. It is offensive. Your skirt is too short." (The first matter complained of). The plaintiff then said: "Who is complaining?" Remoundis: "Centre Management" Plaintiff: "Could I please speak with them?" Remoundis: "Yes, come with me"

It is then said that Ms Remoundis then escorted the plaintiff in the shopping mall for a distance of approximately ten metres and had a conversation on her two-way radio to a person unknown to the plaintiff. Ms Remoundis then said to the plaintiff: "I have to go. They will come and speak to you here. Stay here, wait and don't move". 22 It is then alleged in what are described as the "particulars of false imprisonment" that: "Rebecca Remoundis intended that the plaintiff remain and be detained in the position she was and the Plaintiff herself had an honest and reasonable belief that she had to remain where she was and that her rights of movements had been taken away. The security officer went away leaving the Plaintiff with Westfield security guards in the area. The Plaintiff believed them to be intimidating and menacing. The Plaintiff believed she was forced and obliged to remain in position and was thereby imprisoned".

23 Thereupon, as I understand it from the pleading, the plaintiff waited ten minutes and Rebecca Remoundis returned and said: Remoundis: "Have they seen you?" Plaintiff: "No" Remoundis: "I am going to see what happened. They are on the way. Wait here". 24 The plaintiff waited a further three minutes and was therefore deprived of her liberty for approximately thirteen minutes, so it is contended. At the end of this time Messrs Beckworth and Poile arrived and Beckworth said: "You are wearing a short skirt. It is inappropriate dress. There have been complaints. Your skirt is too short".

(This is the second matter complained of). 25 The plaintiff purports to plead the material allegations as follows (paragraph10): "the Defendant by itself, its servants and agents falsely imprisoned the Plaintiff and deprived her of her liberty". 26 A further component has been exposed in the correspondence as to particulars. The defendant's solicitors asked the plaintiff to specify the facts, matters and circumstances upon which reliance was placed in alleging that (a) Ms Remoundis "intended" that the plaintiff remain and be detained in the position she was and (b) the existence in the plaintiff of an honest and reasonable belief that she had to remain where she was and that her rights of movement had been taken away. The response from the solicitors for the plaintiff in relation to (a) was "the plaintiff will rely on the demeanour, body language and tone of voice" - presumably of Ms Remoundis; and as to (b) "the plaintiff had the honest and reasonable belief because of the words spoken and the matters set out in (a)". Further, the proximity of uniformed security guards is to be relied upon. 27 The defendant contends that the plaintiff has not complied with SCR Pt 16 r 3 in that she has not particularised a "condition of mind" namely "intention". The bald assertion of such an intention does not adequately inform the defendant of the case it has to meet, it is submitted. It is further argued on the facts as set out in the narrative above, that it would be impossible to infer the requisite intention from Ms Remoudis' alleged conduct, given that she was merely responding to the plaintiff's own request: "Could I please speak with them" (i.e. Centre Management). 28 It is further contended that the action does not lie unless the defendant has left the plaintiff no reasonable means of escape. In this case, the defendant asserts, there is no allegation of any physical obstruction at all. Pausing there, the asserted presence of the security officers elevates the matter above "no allegation…at all", in my view. I agree with the defendant's submission that there is nothing unlawful in merely asking a person to stop and wait (even if that person is unwilling: Myer Stores Ltd v Soo [1991] 2 VR 597 at 611). In such a situation a plaintiff can only succeed if she can establish "justified apprehension" that if she did not submit to what was asked of her she would be "compelled by force": Watson v Marshall (1971) 124 CLR 621 at 626. In the absence of physical restraint there must be "threat, actual or implicit, to use force if the other person does not comply": Myer Stores at 611. It is this last component upon which the defendant principally relies to have struck out what is described as an incurable fault in the pleading of the tort of false imprisonment (the more so given the opportunity to amend by reason of my last judgment). 29 Much is made of the plaintiff's request to speak to Centre Management. That, as I understand it, is to be taken as "colouring" the whole dynamics and ambience of the confrontation. 30 It is argued, and rightly so, that the "fear of force" has to be reasonable and that that is an objective test. Even if the plaintiff subjectively held that belief, on the facts as pleaded and particularised it is contended as a matter of law it could not be concluded that it was a "reasonable belief" that there was going to be force against her (see Lippl v Haines (1989) 18 NSWLR 620 at 638). I am not persuaded that this is the "killer blow" to the plaintiff's pleading as submitted by Mr McHugh. The tort of false imprisonment is an intentional tort. The averment in paragraph 10 of the FASC is sufficient in terms of materiality. It is SCR Pt 16 r3 which requires the particularisation of the mental element or "state of mind" namely "intention": see Lyons v Kern Konstructions Pty Ltd (1983) 70 FLR 135 at 145-147, per Fitzgerald J. The state of mind of the defendant through its servants and agents can only be particularised by reference to facts which either directly go to proving that state of mind or from which, those facts having been proved, the only rational inference is that the requisite state of mind was in place. The particulars hitherto provided are sufficient in my view. Further, as I have intimated above, sufficient material has been particularised on the issue of the reasonable belief or apprehension in the plaintiff that she was "imprisoned". In the end, whether the components of the tort have been proved, in this case, will have to be a matter of evidence at trial. 31 I am not persuaded that even on the present pleading and the narrative of events as can be elicited from it and the particulars, that there is an unarguable case in favour of dismissal or that there is no arguable issue to be tried. The level at which the application to strike out was pitched, in my view, on the pleadings and the particulars, was far too high and must fail. Whether in the end the plaintiff can prove a case or, if the occasion arises, the defendant prove anything in defeasance of it in respect of which the onus lies on that party will be a matter for evidence at the trial. 32 The cause of action in false imprisonment having survived I turn my mind to the remaining two matters of complaint on the part of the defendant. 33 The plaintiff says that she has suffered "nervous and mental trauma, fear, apprehension, stress and shock". This allegation seems to be fairly clear in its terms. The defendant however is entitled to proper particulars of any diagnosed psychiatric illness, psychological condition or personality disorder upon which the plaintiff relies as having been caused by the alleged false imprisonment; these particulars should be supplied in the usual way. Otherwise the defendant is entitled to view this matter as no more than an expanded "hurt to feelings" case. I do not propose formally to make any order but it is clearly a matter that should be resolved between the parties. 34 The final matter is the claim for punitive damages for the alleged tort of false imprisonment. It is clear that in this regard, at present at least as I understand it, the plaintiff is relying only on the facts said to constitute the false imprisonment. Whether these facts amount to "outrageous conduct" on the part of the defendant through its servants and agents in "contumelious" disregard for the plaintiff's right will be a matter for judgment on such facts as are proved. I propose to make no order in this regard. This will be essentially a matter for the plaintiff at trial having limited herself to the conduct which she has to prove anyway as amounting to the tort upon which she sues. 35 I make the following orders:

(a) That there be a separate trial of the capacity of the matters complained of in paragraphs 3 and 5 of the Further Amended Statement of Claim to carry imputations 4(a), 4(b) and 6(a).

(b) I hold as a matter of law that the matters complained of are incapable of carrying those imputations and enter a verdict in favour of the defendant in respect of those causes of action.

(c) The plaintiff has leave to file a Second Further Amended Statement of Claim pleading imputations in accordance with these reasons.

(d) With respect to the particulars of aggravated damages I strike out the second sentence thereof and I direct the plaintiff to append to the Second Further Amended Statement of Claim proper particulars specifying the conduct of the defendant relied upon and the facts, matters and circumstances giving rise to the assertion that such conduct is lacking in bona fides, improper and unjustifiable.

(e) I decline to strike out the pleading of the cause of action in false imprisonment.

(f) I decline to strike out the particulars in relation to punitive damages.

(g) I decline to strike out the particulars relating to nervous and mental trauma, fear, apprehension, stress and shock.

(i) The Second Further Amended Statement of Claim is to be filed within 14 days of today.

(j) I place the matter in the Registrar's Defamation Directions List on 6 September 2002.

Last Modified: 08/13/2002 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.