Supreme Court New South Wales Medium Neutral Citation: Templar v Britton [2013] NSWSC 1827 Hearing dates: 2 December 2013 Decision date: 04 December 2013 Before: McCallum J Decision: Refer to page 8 of these Reasons Catchwords: DEFAMATION - pleadings - amended pleading objected to as inconsistent with replaced pleading - plaintiff ordered to verify amended pleading DEFAMATION - pleadings - whether 'sense and substance' of matter complained of republished - where republication did not identify plaintiff - plaintiff ordered to provide particulars of persons to whom matter republished who knew particulars of identification DEFAMATION - imputations - ambiguity - imputation struck out with leave to re-plead Legislation Cited: Defamation Act 2005 Cases Cited: Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 Sims v Wran [1984] 1 NSWLR 317 Category: Interlocutory applications Parties: Stephen Templar (plaintiff) Audametrics Pty Ltd (second plaintiff) Paul Britton (first defendant) Bradley Laughlan (second defendant) State of New South Wales (third defendant) File Number(s): 2012/393936 Publication restriction: None JUDGMENT 1HER HONOUR: These are proceedings for defamation commenced by Mr Stephen Templar and a company, Audametrics Pty Ltd, against Mr Paul Britton (the principal of a school), Mr Bradley Lachlan (a student support co-ordinator) and the State of New South Wales as employer of those two persons. 2The pleading of the claim has an unfortunate history. This judgment determines the defendants' objections to the fifth iteration of the pleading. 3The proceedings arise out of remarks allegedly made by Mr Britton at a P&C meeting on 15 May 2012. Previous iterations of the pleading attributed to Mr Britton the words set out in Annexure G to the Further Amended Statement of Claim, as follows: A man has approached the school about hearing tests for kids. I have discovered it's a scam as there are no details on the brochures. I will speak to the gentleman concerned. 4The previous pleading, notably, also made a claim in respect of the republication of those remarks in the minutes of the meeting. It may be noted that the minutes record those words in almost exactly the same terms, as follows: Man approached school about hearing tests for kids but Paul discovered it's a scam as no details on brochures, Paul will speak to the gentleman concerned. 5It could be inferred that the pleading of the oral publication was drawn in terms from the minutes without the benefit of any other information about the terms of the original oral publication. 6The oral publication is alleged to have been made to persons list in paragraph 10 of the previous pleading, who have presumably been identified as those who attended the P&C meeting. 7The defendants' first complaint relates to the terms in which the oral publication is now pleaded in paragraph 6 of the Second Further Amended Statement of Claim, as follows: A man, Stephen Templar, has approached the school about conducting hearing tests for kids. I have discovered it's a scam. There are no details on the brochures. The company is Audiometrics. I will speak to the gentleman concerned about it. 8The defendants' complaint is that, whereas previous iterations of the pleading relied on a publication which did not name either plaintiff, the same publication is now pleaded in almost identical terms but with the inclusion of the name of each plaintiff. 9The first submission made in respect of that change to the pleading is that it is simply impermissible to plead something that is inconsistent with a previous version of a pleading. That is the position said to flow from the terms of rule 14.18 (1) of the Uniform Civil Procedure Rules which states: A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings. 10It was submitted on behalf of the defendants that the phrase "previous pleadings" includes previous iterations of a pleading even after amendment. I do not think that is what the rule means. It would create an extremely difficult situation for any party who, having commenced proceedings, learnt that facts previously pleaded were wrong and needed to make an amendment on that account. 11On my understanding of the rule what it prohibits is, either within the same pleading or within, say, the combination of pleadings from a party consisting of a Statement of Claim and a Reply, a party may not plead fact X and fact not-X and seek to rely on each of those inconsistent facts as concurrent contentions in the same proceedings. 12Accordingly, I am not persuaded that the new pleading is liable to be struck out. However there is, in my view, force in the submission put in written submissions prepared by Mr Sibtain and developed orally by Mr Hall in Mr Sibtain's absence that it is an extraordinary development in the proceedings for the plaintiff to have moved from relying on a matter complained of which does not name him, with extrinsic facts of identification pleaded in the earlier versions of the Statement of Claim, to now alleging that both plaintiffs were named in the oral publication. The concern in that respect is compounded by the fact that the pleading of the oral publication, as I have noted, appears to have been drawn in terms from the minutes of the meeting, while the new pleading of the publication is in almost exactly the same terms but with the insertion of the names of each plaintiff. 13There is, in my view, sufficient concern about the development or evolution of the pleadings in this case to warrant the making of the alternative order sought by the defendants that the plaintiff should be required, contrary to the default position under the rules, to verify the latest pleading. What I propose in that respect is to make an order under rule 14.22(2) that Division 4 of the Uniform Civil Procedure Rules applies to the Second Further Amended Statement of Claim, despite sub-rule 14.22(1). 14Mr Hall submitted that I should go further and order the plaintiff to put on an affidavit explaining the circumstances of the change. I do not think that is necessary, or appropriate. In my view the defendants' concerns will be adequately met by the order I have foreshadowed. 15The second objection raised by the defendant is that paragraph 8 of the new pleading alleges that the "sense and substance" of the first matter complained of was republished in the minutes. It may be seen, at a glance, that that is not so, since the minutes do not name either plaintiff. The plaintiffs have not given particulars of the persons to whom the minutes were published who knew extrinsic facts from which they were able to identify the plaintiff as the "gentleman concerned". Mr Rasmussen, who appears for the plaintiffs, responded in effect that it does not matter because the plaintiffs rely upon the republication only as to damages and not as a separate cause of action, invoking the second limb, if it may be put that way, in Sims v Wran [1984] 1 NSWLR 317 at 320E. 16However, it is plain enough as a matter of logic, in my view, that a republication may not be relied upon where, unlike the original publication, the republication does not identify the plaintiff unless the alleged republication was made to people who knew facts such as to identify the plaintiff as the person referred to. Even if the minutes are relied upon only as to the extent of damages claimed in respect of the original oral publication, the defendants are entitled to know the case they have to meet in that respect. 17Accordingly, I think it is appropriate to require the plaintiff to provide particulars of the persons to whom the minutes were published who knew facts such as to identify the plaintiff as the person referred to in the relevant part of the minutes. 18A further complaint in respect of that part of the pleading relates to the allegation in paragraph 8 that there was a republication by Mr Britton to his wife, who also happens to be the principal of a public school. The complaint is that the terms of that republication are not pleaded. However, the pleading clearly states that the republication to Mrs Britton is relied upon as to damages only. Having made his intention clear (to complain only of the original publication and to rely upon the republication to Mrs Britton only as to damages), there is no requirement for the plaintiff to plead the words said: Sims v Wran at 320E. 19The defendants' third objection is to the imputations relied upon as arising from the third matter complained of, which consists of an email allegedly sent by the second defendant, Mr Lachlan (Annexure A to the pleading). The submissions object to imputations (b) and (e) alleged to be conveyed by that publication. However, imputation (b) relates to the second plaintiff, the company, Audiometrics Pty Ltd. 20At the outset of argument, Mr Rasmussen conceded that Audiometrics is not an excluded corporation within the meaning of the Defamation Act 2005. I think it was being indicated, implicitly if not expressly, that Audiometrics would discontinue its claim. The argument as to the imputations did not catch up with that development, but I assume that imputations (a), (b) and (c) in paragraph 11 are not pressed for that reason. 21The defendants' only objection to imputations (d), (e) and (f) relating to the first plaintiff was to imputation (e), as follows: The first plaintiff, as controller Audiometrics, permits the company to conduct hearing and vision tests on school children that are not valid. 22The defendants submitted that the imputation fails to capture unambiguously any defamatory sting in respect of the first plaintiff. 23Mr Rasmussen responded that the imputation fell within the category of imputation necessarily pleaded in vague terms owing to the vague language of the matter complained of, citing the well-worn decision of the Court of Appeal in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135. The difficulty is that the matter complained of, in my view, does admit of a clearer specification of the defamatory sting complained of. The relevant sentence in the email is: Concerns have been raised by Central Coast Area Health Services regarding this [the] accuracy and validity of the results of this testing. 24As submitted by Mr Hall, that remark is directed to the validity of the results, not the validity of the testing. The impugned imputation directs attention to the validity of the tests. Mr Rasmussen submitted that they are the same thing, that is, that an invalid result means there must have been an invalid test. I do not accept that submission. Further, in my view, the concept of an invalid hearing test is difficult and is likely to occasion confusion both in pre-trial processes and at the hearing (see Drummoyne at 138E). Accordingly I would strike out imputation 11(e) with leave to replead with greater specificity. 25The final complaint in respect of the defamation part of the pleading is to paragraphs 12 and 13 where there is a general allegation of republication to "a wide and extensive audience". Once again, the complaint is that the terms of the republication are not pleaded. The current pleading certainly creates some confusion, in that it is not clear whether it is a general allegation of grapevine effect or general circulation of the original publication (going only to damages) or something more specific. 26In my view, however, rather than strike out those paragraphs of the pleading, I would consider it appropriate to order the plaintiff to provide particulars of those publications (clearly specifying whether they are relied upon as separate publications or only as to damages). 27The pleading also makes claims for misleading or deceptive conduct in trade or commerce and unconscionable conduct in trade or commerce contrary to the Australian Consumer and Competition Legislation. The defendants' complaints in respect of that part of the pleading were not addressed in any detail in oral submissions and I do not think they were responded to at all by Mr Rasmussen. 28In my view there is force in the complaints made (leaving aside the repetition of the complaint that the pleading is prohibited under rule 14.18, which I have rejected). The defendant's specific complaints are set out at paragraphs 23 to 30 of their written submissions. Similar complaints are made in respect of a claim in injurious falsehood at paragraphs 31 to 36 of the submissions. Further complaint is made as to the complete absence of any particulars of future economic loss at paragraph 37 of the submissions. 29The pleading of those causes of action in my view does suffer inadequacies in the failure separately to plead each element of the cause of action and in the inadequate particularisation of the claims, as alleged in those paragraphs of the submissions. I think the appropriate course is to order the plaintiff to treat those paragraphs of the submissions, in effect, as a request for particulars and to respond to them. The orders are: 1. Pursuant to rule 14.22 (2) of the Uniform Civil Procedure Rules, that the Second Further Amended Statement of Claim filed 26 August 2013 be verified in accordance with the rules in Division 4 of Part 14 of the Rules. 2. That the plaintiff provide particulars of the republication pleaded in paragraph 8 of the pleading in accordance with these reasons. 3. That the plaintiff provide particulars of the republications pleaded in paragraphs 12 and 13 of the pleading in accordance with these reasons. 4. That the plaintiff provide particulars of the other claims in the proceedings in response to the complaints made in paragraphs 23 to 37 of the defendants' written submissions. Mr Camilleri, can you be heard against an application for costs? CAMILLERI: I ask your Honour to reserve the question of costs. HER HONOUR: I will reserve the question of costs. The particulars that have been ordered - I direct that the particulars be provided by 20 January 2014 and I will stand the proceedings over to the next defamation list on 3 February 2014. ********** 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. Decision last updated: 12 December 2013