New South Wales Supreme Court CITATION : Styles v Izzo & Ors [2010] NSWSC 464 HEARING DATE(S) : 3 May 2010 JUDGMENT DATE : 7 June 2010 JURISDICTION : Common Law JUDGMENT OF : Simpson J DECISION : Leave granted to the plaintiff to file an amended statement of claim CATCHWORDS : DEFAMATION – actions for defamation – pleading – whether proposed amended statement of claim defective – leave granted to file amended statement of claim LEGISLATION CITED : Uniform Civil Procedure Rules 2005 CATEGORY : Procedural and other rulings CASES CITED : Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 Webb v Bloch (1928) 41 CLR 331 Bridgette Rebecca Styles (Plaintiff) PARTIES : Luis Anthony Izzo (First Defendant) Joseph John Catanzariti & Ors trading as Clayton Utz (Second to Two Hundred Sixteenth Defendants) FILE NUMBER(S) : SC 2009/297774 COUNSEL : S T Chrysanthou (Plaintiff) M Richardson (Defendants) SOLICITORS : N/A (Plaintiff) Clayton Utz (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST SIMPSON J 7 June 2010 2009/297774 Bridgette Rebecca Styles v Luis Anthony Izzo & Ors JUDGMENT 1 HER HONOUR: By statement of claim filed on 18 September 2009, the plaintiff, Ms Bridgette Styles, claims damages for defamation arising out of two alleged publications. She names 217 defendants, of whom all except the first are pleaded to have been partners in a firm of solicitors ("the Partnership"). The first defendant, Mr Luis Izzo, is pleaded to have been a solicitor employed by the Partnership. 2 The first publication was pleaded in paragraph 4 as an oral publication by Mr Izzo to the second defendant, Mr Joseph Catanzariti, on 20 September 2008. The second publication was pleaded in paragraph 6 as a file note published in or about September or October 2008 by all defendants to various individuals, some of whom are named in particulars subscribed to paragraph 6. 3 After correspondence between the parties Ms Styles gave notice of her intention to file an amended statement of claim. By UCPR 19.1(1), by reason of the time that has elapsed since the statement of claim was filed, she needs leave to do so. The defendants object to leave being granted. The reason for the objection is that, in a number of respects, the proposed amended statement of claim is defective. The proposed amended statement of claim is the subject of the present proceedings. 4 Some of the respects in which the proposed amended statement of claim was said to be defective concerned the pleading of the imputations Ms Styles alleges were conveyed by the publications. I dealt with those objections ex tempore in a hearing on 3 May 2010. What remains for consideration is a further and more fundamental objection to the pleadings. In order to explain the objection, it is necessary to outline some background facts, drawn from the proposed pleading. I will assume, for the purposes only of this judgment, the facts alleged in the proposed amended statement of claim. The following account of facts and circumstances is drawn solely from what is contained therein. 5 Ms Styles is a solicitor. Between 20 August 2007 and 12 December 2008 she was employed by the Partnership as a graduate solicitor. 6 In paragraph 4, Ms Styles alleges that, at about 7pm on 20 September 2008, Mr Izzo spoke to Mr Catanzariti. He said: "Bridgette Styles, your new graduate solicitor, is making extremely serious and unjustified allegations about Abraham Ashe, Cilla Robinson and James Simpson and I. She is accusing us of conspiring to place pictures of me in Abe's office. She is saying that she has been sexually harassed by the pictures and she is threatening to use the sexual harassment allegations as bargaining chips against the firm, to force us to let her stay in the Workplace Group after her rotation finishes. She was very aggressive and even grabbed me even though I was backing away. I don't want to come back from secondment to the Workplace Group if she's in it." 7 This is referred to in the proposed pleading as "the first matter complained of". 8 In paragraph 5, Ms Styles claims that four defamatory imputations were conveyed by this publication. The defendants make no challenge to this pleading, and it is unnecessary to say more about it. Paragraph 4 can be put to one side. 9 In paragraph 6, Ms Styles alleges that, the following day, 21 September 2008, Mr Izzo (who, it is emphasised, is an employed solicitor, and not a member of the Partnership), communicated by email with an unknown number of recipients, one of whom was Ms Sheila Rebeiro. Ms Rebeiro was the "National HR" (presumably, Human Resources) Manager of the Corporate Practice Group of the Partnership. Mr Izzo made this communication at the request of and with the authority of Mr Catanzariti, who had directed him to prepare and distribute a note of the events to which it referred. The email was entitled "File Note made by Luis Izzo on 20 September 2008" and is referred to in the proposed amended statement of claim as "the second matter complained of". The email contained a longer, more detailed, account of the exchange to which Mr Izzo had referred in the first matter complained of. In paragraph 7, Ms Styles claims that 16 imputations defamatory of her were conveyed by this publication. 10 In particulars subscribed to paragraph 6, Ms Styles claims that there followed wide republication of the content of the email, both inside and outside the workplace of the Partnership. This included republication to "the general population" of legal practitioners of Sydney, in employment law circles in which Ms Styles moved and was employed, among mutual friends and acquaintances of Mr Izzo and of Ms Styles, and among Ms Styles' family and friends. 11 (It is Ms Styles' case that, because the email was sent by Mr Izzo at the direction of Mr Catanzariti, both Mr Catanzariti and the Partnership as a whole are liable for any defamatory consequences. That is not a matter for present determination.) 12 No challenge is made to paragraph 6 of the proposed amended statement of claim (which is in substantially similar terms to the equivalent pleading in the original statement of claim). Paragraph 6 can therefore also be left to one side. 13 The proposed amended statement of claim contains new paragraphs 6A, 6B and 6C. These are the subject of the present proceedings. Counsel for the defendants has urged that paragraph 6A (and, presumably, paragraphs 6B and 6C) be struck out. However, as the document has not been filed, that is inapt. Properly characterised, what the defendants seek is that leave to file the proposed amended statement of claim be refused while ever those paragraphs remain in their present form. The defendants contend that they are defective, and defective in a way that seriously prejudices them. 14 Paragraph 6A pleads: "The second matter complained of has been republished at various times since its publication." That pleading is followed by particulars of the alleged republication. 15 Those particulars are (I paraphrase): o that, on or before 26 September 2008, "the sense and substance" of the content of the email (the second matter complained of) was republished by employees (including, I infer, Ms Rebeiro) or agents of the Partnership to a number of people, the identities of some of whom are presently unknown to Ms Styles, but including Ms Rachael Weir (the HR Manager of the Sydney office) and two named individuals (who, I was told during the hearing, are employees of the Partnership); o that, in or about October 2008, "the sense and substance" of the content of the email was republished by employees or agents of the Partnership in that a copy was published to the third defendant, and to another named individual; o that, in or about October 2008, "the sense and substance" of the content of the email was republished by Ms Weir to a number of people, including Mr Ash (one of the men named in both the first matter complained of and the email). This was done in interviews conducted by Ms Weir and the third defendant in relation to the email; o that, on an unspecified date, "the sense and substance" of the email was republished by an employee of the Partnership (Ms Jen Teh), who had received the contents of the email in interviews of the kind mentioned above, and who then discussed its content with another employee of the Partnership at a public bar in the vicinity of the offices of the Partnership; o that, on or about 25 October 2008, "the sense and substance" of the content of the email was republished by Ms Weir to another named individual; o that, at times unspecified, "the sense and substance" of the content of the email was republished by Ms Styles herself in circumstances where she was under a social and moral duty to do so in order truthfully to answer queries about why she was not at work (an office alert having been placed upon her work email address by the Partnership). Those to whom Ms Styles had republished the content of the email included family members, colleagues, flatmates and friends, and prospective employers to whom Ms Styles had applied for employment. 16 In paragraph 6B Ms Styles pleads that the email was published by the defendants in circumstances in which it was the natural and probable consequence of publication that it would be republished, and in paragraph 6C, she pleads that the defendants are therefore liable for the republications. 17 The particulars given of "republication" fall into two distinct categories: o those set out in particulars (a) to (e) of paragraph 6A; these, essentially, have in common that they are said to be republications of the content of the email by employees of the Partnership. In some instances the republication is said to have been to a member of the Partnership (particular (b), to the third defendant), to employees (particular (a), the two named employees), to Mr Ash (particular (c)). In some instances names of recipients are given but their positions are unspecified. Republication claimed in particular (d) is in a slightly different category, in that the republication is said to have taken place at a bar, but nevertheless, the allegation is that it was to another employee of the Partnership; o republication alleged in particular (f): this is republication by the plaintiff herself, allegedly in circumstances in which she was under a social and moral duty to do so. 18 Republication by a plaintiff was dealt with by Hunt J (as he then was) in Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364. Having noted that publication to a plaintiff is not publication in law, his Honour held that further publication by a plaintiff in receipt of the defamatory publication cannot amount to "republication", but may be original publication for which the defendant is nevertheless liable. His Honour set out the circumstances in which a defendant publisher will be liable for such publication (see pp 368-369). 19 A challenge was made on behalf of the defendants to the extent to which the plaintiff seeks to invoke that principle. However, that is not a matter to be determined on a pleading argument. It is a matter to be determined in the light of the evidence in the trial. 20 The earlier challenges concern what is publication within the Partnership. It was put on behalf of the defendants that each of the so-called "republications" set out in particulars (a) to (e) is, in reality, an original publication. I do not accept that this is so. From the facts pleaded, (and these may vary when the evidence is given) Mr Izzo published the email; because he did so at the direction of Mr Catanzariti, Mr Catanzariti and the remaining defendants all became liable for that publication (see Webb v Bloch (1928) 41 CLR 331); what happened thereafter, the alleged publication by Ms Rebeiro, by other employees or agents, Ms Weir and Ms The, was republication of the original publication. 21 However, the issue may be of little importance. It has arisen because of the location of paragraph 6A in the statement of claim, immediately after the pleading of the first and second causes of action. It was a natural inference that republication was pleaded as a separate cause of action. 22 It has been made clear on behalf of Ms Styles that the republication alleged in paragraph 6A is relied upon only as relevant to damages, and not as a separate cause of action. This is permissible: see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121]-[128]. 23 The proposed pleading would be better if it made perfectly clear that reliance is placed upon republication as only going to damages. That can be done by repositioning the pleading in that part of the statement of claim in which matters relevant to damages are pleaded. 24 Having regard to the rulings I made in respect of the imputations, it will be necessary that Ms Styles rework the proposed amended statement of claim. Subject to compliance with those rulings, the order I make is that the plaintiff have leave to file an amended statement of claim. ********** 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.