Bickel v John Fairfax & Sons Ltd [1981] 1 NSWLR 474

Jones v Jones [1916] 1 KB 351

Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063

1 HASLUCK J: This is an application by the defendant to strike out the plaintiff's statement of claim pursuant to O 20 r 19(1) of the Rules of the Supreme Court.

2 The relevant rule provides that the court may at any stage of the proceedings order to be struck out any pleading on the ground that it discloses no reasonable cause of action, or it may prejudice, embarrass or delay the fair trial of the action.

3 It was not entirely clear from the summons as to the basis upon which the defendant was seeking to strike out the claim, but as debate proceeded, it became clear that the pleading was said to disclose no reasonable cause of action.

4 The plaintiff says in her statement of claim that she is an interior designer and has been engaged in that profession since 1999. She was employed by the defendant's company, N & D Farrell Investments Pty Ltd, trading as Interior Designers, until the termination of her employment on 1 June 2001.

5 The plaintiff alleges in par 6 of the claim that on or about the date of termination, the defendant spoke and published to a third party of and concerning the plaintiff and of and concerning her in the way of her business the following words:

"Sharon does not have enough experience, lacks technical knowledge and does not have enough understanding of the business."

6 The words complained of in par 6 were described as the first defamatory item.

7 The plaintiff alleges further that on 8 May 2001, the defendant spoke of and published to one Janelle Gurney of and concerning the plaintiff's personal relationships with men the following words, which were described as the second defamatory item:

"Sharon will only ever see anyone with money and no-one will ever be good enough for her."

8 In par 8 of the statement of claim the words complained of comprising the first defamatory item are reduced to various discrete imputations. It is alleged that the words in their ordinary and natural meaning meant and were understood to mean that:

"(a) the Plaintiff was too inexperienced to adequately or professionally perform her duties and obligations as an interior designer;

(b) the Plaintiff did not have the technical knowledge required to adequately or professionally perform her duties and obligations as an interior designer;

(c) the Plaintiff did not have enough understanding of her profession to adequately perform her duties and obligations as an interior designer;

(d) the Plaintiff should not be engaged as an interior designer for reward or at all."

9 The claim goes on to allege that the words sued upon in the first defamatory item are actionable per se and that the plaintiff has been caused serious injury to her reputation.

10 The plaintiff alleges further in par 11 of the claim that the words comprising the second defamatory item in their ordinary and natural meaning meant and were understood to mean that the plaintiff does and would engage in sexual relations with men (i) only if there are financial or material incentives or rewards; (ii) irrespective of whether a particular man were married to a woman other than the plaintiff.

11 It is said that the words sued upon in the second defamatory item are actionable per se and that the plaintiff has been damaged in her reputation.

12 I digress briefly to note that the application to strike out had been preceded by various exchanges by the solicitors representing the respective parties.

13 By a letter dated 14 August 2001, the solicitors for the defendant asserted that the plaintiff had attempted to "overplead" her case and invited the solicitors for the plaintiff to amend, failing which an application to strike out would be made.

14 The solicitors for the plaintiff disclaimed any knowledge of the term "overplead" and made it quite clear that no amendment to the claim would be forthcoming.

15 It was against this background that the solicitors for the defendant contended that they had complied with O 59 r 9 of the Supreme Court Rules which provides that no order shall be made unless the application was filed with a memorandum stating that the parties have conferred to try to resolve the matters giving rise to the application. The solicitors for the plaintiff contended that the parties could not be said to have conferred and the matter in issue had not been clearly defined.

16 I subscribe to the view that the parties must define the issue with exactness before it can be determined whether agreement cannot be reached. The rule undoubtedly contemplates that the parties to a procedural issue will make a genuine attempt to resolve their differences before an application is brought.

17 It seems to me that, in the present case, both parties adopted an overly dogmatic stance at an early stage and therefore failed to observe the spirit of the rule in question. However, in the final analysis I am not persuaded that the alleged lack of compliance with the rule is sufficient of itself to bar relief of the kind sought. It was made clear to the solicitors for the defendant that no amendment would be forthcoming. Accordingly, the defendant was left with no option but to bring on for hearing the application to strike out.

18 Before turning to the matters in issue raised by the application to strike out, it will be useful to look briefly at some relevant principles of law bearing upon an application of this kind.

19 I begin by noting that no evidence is admissible on such an application. The court will not go outside the pleadings and will assume that evidence can be adduced to substantiate the allegations.

20 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447.

21 It remains a rule of practice that the plaintiff must plead the imputations said to arise from the words complained of unless the defamatory meaning is so clear that distillation is obviously unnecessary: Taylor v Jecks (1993) 10 WAR 309.

22 An imputation must express the precise act or condition attributed to the plaintiff and should represent the final distillation of the alleged defamatory meaning. Each imputation must reflect a discrete assertion, with the result that it is embarrassing to plead the same meaning several times: Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 775; Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1971] HCA 4; (1975) 124 CLR 1 at 15.

23 The plaintiff must set out the meaning which he or she alleges ordinary readers would infer from the words complained of. In deciding whether or not the words are capable of conveying an allegedly defamatory meaning, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. The court will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unusually suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction: Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7.

24 The test of whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is whether under the circumstances in which the words were published, people to whom the publication was made would be likely to understand them in a defamatory sense: Jones v Skelton (1963) 1 WLR 1362.

25 It follows from a review of the decided cases to this point that the pleader must exercise care in ensuring that the imputation crafted from the words complained of truly reflects the meaning of the words and is one which is capable of adversely affecting the plaintiff in the estimation of right-thinking members of society. Thus, the first question to be addressed upon a striking-out application will often be whether the pleaded imputations can be said to arise from the words complained of. If so, the next question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff.

26 Whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law to be decided by the court.

27 A party is entitled to have the imputation it contends for left to the trier of fact for the ultimate decision: Leslie v Mirror Newspapers Ltd [1971] HCA 66; (1971) 125 CLR 332 at 341. However, imputations will be struck out at this stage of the proceedings if they are untenable or manifestly groundless: Smith v Littlemore (1996) 15 WAR 289; Birmingham v WA Newspapers [1999] WASC 19.

28 In the case of a libel, damage arising from a publication is presumed. In the case of a slander, however, the plaintiff has to prove either that the words are actionable per se at common law or that he or she has suffered special damage. Words will be actionable per se where the words complained of impute the commission of a crime, where there is an imputation of contagious disease, where allegations are made of unfitness for a profession, trade or office, or where there is an imputation of unchastity: Fleming: The Law of Torts (9th ed) pages 605 to 606.

29 If the statement of claim is found to be insufficient, upon the hearing of an application to strike out, the plaintiff can generally obtain leave to amend unless it is clear that an amendment cannot overcome the objection: Gatley on Libel and Slander (9th ed) par 26.42.

30 In the present case, counsel for the defendant submitted that the imputations said to arise from the first defamatory item did not arise from the ordinary and natural meaning of the words complained of or at all. It was not clear whether the experience, technical knowledge and understanding referred to were referable to the plaintiff personally or to the plaintiff as someone associated with the defendant's business or generally in the business of interior designing.

31 Counsel for the defendant submitted further that the expression "adequately or professionally" is embarrassing in that it conveys different meanings. Counsel relied upon the reasoning in Taylor v Jecks (supra) where the expression "had shown lack of judgment and acted in a manner inappropriate to his office" was struck out as embarrassing because it seemed that separate allegations were being made.

32 Counsel for the plaintiff made it clear by his submissions that the claim being advanced was an action for slander in respect of an imputation disparaging the plaintiff in her profession, trade or business. Accordingly, it was not necessary for the plaintiff to show special damage. This was a plea of slander actionable per se. It was said further that an imputation that a woman used sex to manipulate others is an imputation of unchastity: Random House Pty Ltd v Abbott and Costello [1999] FCA 1538; (1990) 167 ALR 224 at 261.

33 Counsel for the plaintiff contended that the words complained of and the imputations representing the distillation of those words disclosed a reasonable cause of action and could not be characterised as embarrassing or prejudicial. The words were allegedly defamatory because they imputed lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of the plaintiff's trade, business or professional activity: Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 699.

34 The plaintiff's counsel submitted that although the words "adequately" and "professionally" did not convey distinct imputations of the kind alluded to by Anderson J in Taylor v Jecks (supra), the plaintiff would be prepared to plead each separate word in a separate paragraph.

35 In my view, the four, discrete imputations set out in par 8 of the statement of claim, being a distillation of the words comprising the first defamatory item, can be said to arise from the words complained of. It is apparent that the plaintiff is being referred to in the way of her trade or profession because there is an explicit reference to "technical knowledge". The imputations cannot be characterised as untenable or manifestly groundless and to my mind they are capable in law of conveying a meaning defamatory of the plaintiff.

36 It follows from these conclusions that it is not necessary for the plaintiff to plead and prove matters of special damage. Accordingly, I am not prepared to strike out the imputations set out in par 8 of the statement of claim on the grounds that there is a failure to disclose a reasonable cause of action.

37 As I have already noted, counsel for the plaintiff conceded that the use of the conjunctive words "adequately or professionally" in pars 8(a) and 8(b) was arguably embarrassing. Accordingly, I consider that these two paragraphs should be struck out upon the ground that they are embarrassing, but with leave to replead.

38 Different considerations arise when I turn to the imputations set out in par 11 which are said to arise from the words comprising the second defamatory item. Upon a first reading, the words seem to amount to no more than a slightly catty remark and I doubt that the ordinary reader or listener would understand that the words were being used in a defamatory sense that impacted upon the plaintiff's reputation. The words did not appear to be spoken of her in the way of her trade or profession and it is therefore questionable whether they can give rise to a slander actionable per se.

39 Counsel for the plaintiff submitted at some length that in modern society the word "see" would be understood to mean that there was a sexual liaison of some kind between the two parties who were seeing each other. I accept that in certain contexts this could possibly be so, especially if the words were accompanied by words or gestures that hinted at a close attachment or a degree of intimacy going beyond casual meetings. However, there is nothing pleaded in the statement of claim which purports to add an extra dimension to the words used. Accordingly, I am not persuaded that the imputations pleaded are actually referable to the words used. Further, and in any event, it is questionable whether the words used are capable in law of conveying a meaning defamatory of the plaintiff.

40 Notwithstanding my reservations as to the capacity of the words used to be transformed into arguable imputations, I will allow to the plaintiff leave to replead in respect of this aspect of the matter.

41 In summary, then, the imputations pleaded in pars 8(a) and (b) will be struck out in the ground that the plea of "adequately or professionally" is embarrassing, but with leave to replead. The imputations pleaded in par 11 will be struck out on the grounds that the pleading fails to disclose a reasonable cause of action. The plaintiff will be allowed leave to replead in respect of the second defamatory item also.

42 I will hear from the parties as to whether any further orders and directions are required.