Supreme Court New South Wales Medium Neutral Citation: Le Mottee v Dingle [2017] NSWSC 635 Hearing dates: 5 May 2017 Decision date: 05 May 2017 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to the plaintiffs to file and serve an amended statement of claim within 14 days. Catchwords: DEFAMATION – pleadings – identification – where plaintiff not named in the matter complained of – whether adequate particulars of identification given DEFAMATION – imputations – objections as to form and capacity – whether allegations of corruption capable of being understood from the matter complained of – whether attribution of engaging in corrupt conduct can be levelled at a company as opposed to its officers Legislation Cited: Defamation List Practice Note SC CL 4, cl 13 Uniform Civil Procedure Rules 2005 (NSW), r 15.19(1)(d) Category: Procedural and other rulings Parties: Paul Le Mottee (first plaintiff) Le Mottee Group Pty Ltd (second plaintiff) Geoff Dingle (first defendant) Linda Bowden (second defendant) Ken Kneipp (third defendant) Representation: Counsel: D Allen (plaintiffs) S Chrysanthou (first defendant) L Barnett (second and third defendants) Solicitors: Catalyst Legal (plaintiffs) Pikes & Verekers Lawyers (first defendant) Moray & Agnew (Newcastle) (second and third defendants) File Number(s): 2017/86754 Judgment 1. HER HONOUR: These are proceedings for defamation commenced by a councillor of Port Stephens Council, Mr Le Mottee, against another councillor of the same council and two other persons. 2. The proceedings arise out of an email dated 22 March 2016, evidently sent in the context of a proposed merger between Port Stephens Council and Dungog Shire Council. The second defendant is a member of that council; the third defendant is her husband. 3. The proceedings are before the court today for the first listing (see Defamation List Practice Note SC CL 4, cl 13). As to the question of publication, the first defendant admits sending the email to the email address, which is the address of the second and third defendants. The second defendant admits forwarding the email to the recipients listed in a copy of the email provided at today's hearing. The third defendant denies publication. To explain, the second and third defendants have a single email address which they have shared for many years. The second defendant admits that it was her who used that address to forward the email; the third defendant denies any participation in that act. 4. As to the objections to the form of the pleadings, the defendants raised a number of matters concerning allegedly inadequate particulars. In the main, the plaintiff accepts the need to provide further particulars. For future reference, I will record the matters raised and resolved during argument. 5. First, para 1 of the statement of claim gives particulars about the second plaintiff, a corporation. However, as submitted by Ms Chrysanthou, who appears for the first defendant, the pleading does not comply with the requirements of r 15.19(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW) as to the corporate plaintiff (which is not named in the matter complained of). 6. Secondly, para 4 appears to assert publication of the matter by the first defendant to persons other than the two recipients shown on the face of the email. Either particulars of any such additional allegations should be provided or that paragraph should be amended to conform to what is shown on the face of the email. 7. Paragraph 13 appears to be directed to the question of identification of the second plaintiff (which, as already noted, is not named in the email). In particular, the pleading alleges that each of the persons who received the email knew that the first plaintiff, Mr Le Mottee, was the director, or at least the controlling mind, of the second plaintiff, "by reason of the persons having seen development applications which had reports included prepared by Le Mottee Group and that Le Mottee Group was a well-known business in Port Stephens, Dungog and Singleton." 8. The defendants contend that the plaintiff should provide particulars of the development applications referred to. Mr Allen, who appears for the plaintiff, resisted that request, submitting that in a community the size of Port Stephens, and having regard to the identity of the recipients of the email, it would have been well known to those persons that the company, Le Mottee Group Pty Ltd, was associated with Mr Le Mottee. That is an inference that might readily be drawn even from the names of the two plaintiffs. In any event, I accept, as submitted by Mr Allen, that it is not necessary and would visit unnecessary costs on the plaintiff to require particulars of each and every development application referred to. It may be, however, that adequate particulars of identification have not been provided. The plaintiff should provide any further particulars he is able to provide in accordance with the requirements of the rule. 9. Next, as to para 15, it was submitted that that paragraph is irrelevant. That submission related to an issue as to whether certain imputations are conveyed as true innuendos or as arising in their natural and ordinary meaning. I will return to that issue. 10. Finally, it was submitted that the second plaintiff has not provided adequate particulars of an apparent claim for economic loss. Mr Allen accepted that that is so and undertook to provide further particulars of that aspect of the claim. 11. That deals with the matters raised concerning the adequacy of the particulars given in the pleading. 12. Separately, the defendants object to a number of the imputations pleaded by the plaintiff. First, imputation 16(a) is: Paul Le Mottee is corrupt in that he accepted campaign funding from the mayor and in return does what the mayor expects of him. 1. That imputation is objected to by the second and third defendants only, on the grounds that it is not capable of arising in the natural and ordinary meaning of the matter complained of and could only arise as a true innuendo. As already noted, para 15 of the statement of claim evidently attempts to plead a matter by way of extrinsic fact. That paragraph states, "It was known to Geoff Dingle, Linda Bowden, Ken Kneipp and all the other persons who received the email that it was improper and contrary to s 96EA of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) for Paul Le Mottee to accept funding from Bruce McKenzie at the last Local Government election for the Port Stephens Council". 2. Mr Allen conceded that the matter pleaded in para 15 was intended to be an extrinsic fact to support a true innuendo that is presently not properly pleaded. He indicated his intention to rectify the pleading so as to make plain that a true innuendo is relied on. However, he also submitted that the imputation is capable of arising in the natural and ordinary meaning of the words. I agree. The whole tenor of the email is to accuse various members of the council, including the individual plaintiff, of corruption of the kind captured in the imputation. I do not think the ordinary reasonable reader would need to know the content of s 96EA in order to take that meaning from the email. 3. On the contrary, in my view, the email is reasonably capable of being understood to mean that to accept a payment from the mayor, and then in return do what the mayor expects, entails corruption. That imputation will go to the tribunal of fact. 4. Imputation (b) is: Paul Le Mottee is corrupt in that he brings before Port Stephens Council development applications that he knows the Council ought to refuse, but he has the mayor arrange for development consent to be given and has rewarded the mayor for doing so with his loyalty. 1. Ms Chrysanthou submitted that the imputation involves a series of rolled up propositions, with the result that it is not possible to discern what is the corruption sought to be attributed to the first plaintiff. She asked, rhetorically, whether it is that he brings unmeritorious development applications before the council or that he has the mayor arrange development consent to be given to those applications. In my view, it is plain enough that the corruption is attributed as arising from the very combination of the several propositions identified in the imputation. It is not one which suffers from the vice of conveying two separate stings, but rather one which attributes corruption arising from the combination of discrete elements. That imputation will stand. 2. Mr Allen indicated during argument that imputation (c) would not be pressed. That concession was made in response to the submission, which has some force, that that imputation (which is one of incompetence) is incapable of being conveyed at the same time as the imputation of corruption in imputation (b). In other words, the submission (accepted by Mr Allen) was that the email could only be understood to accuse the plaintiff of the greater vice of corruption, as opposed to mere incompetence. 3. Imputation (d) is: Paul Le Mottee is a man without integrity as he will do as dictated by the mayor. 1. Ms Chrysanthou submitted that to accuse someone of doing as dictated by another does not, of itself, indicate a want of integrity and, on that basis, that the tail of the imputation is incapable of sustaining its defamatory sting. 2. Mr Allen indicated that the imputation will be amended so as to add a reference to the fact that the role in which Mr Le Mottee is attributed as having acted without integrity is that of a councillor. He submitted that the ordinary reader would understand that a councillor is supposed to be independent. The words added will be something along the lines of, "Paul Le Mottee, an independent councillor," and so on. With the addition of those words, in my view, the imputation adequately captures a clear defamatory sting and should be allowed to stand. 3. The next objection is to imputation (f), which is: Paul Le Mottee as councillor of the Port Stephens Council acts improperly in that he, as a group of councillors aligned with the mayor, conducts council meetings without transparency." 1. Presumably the imputation was intended to read, "...in that he, as one of a group of councillors aligned with the mayor," and so on. 2. The objection to that imputation was the same as for imputation (d), namely, that the tail which describes conducting council meetings "without transparency" is incapable of sustaining the sting of acting improperly. I do not accept that submission. As submitted by Mr Allen, I think it would be readily understood by the ordinary reader that councillors sitting on a local council, acting properly, will conduct their meetings in a manner that is transparent so that the council's governance can be scrutinised by members of the public. That is, I think, understood by the ordinary reasonable reader to be a central requirement of governance at all levels of government. That imputation will stand. 3. As to the second plaintiff, the company, the plaintiff has pleaded two imputations as follows: 18(a) The Le Mottee Group engages in corrupt conduct in that it arranges, through Councillor Paul Le Mottee, with the mayor for non-complying developments prepared by the Le Mottee Group to be approved by Port Stephens Council. (b) The Le Mottee Group is incompetent in that it prepares development approval applications that do not meet Council's development requirements. 1. Both imputations are objected to on the basis that they attribute to a company a state of mind. Mr Allen submitted that a company can engage in corrupt conduct, albeit only through its officers. He indicated that he would not press imputation (b), presumably for the same reason for which he conceded imputation 16(c), namely, the recognition that the matter complained of is pitched higher than at the mere level of incompetence. 2. As to imputation (a), I accept that an attribution of corruption could be levelled at a company on the basis of the conduct of its officers. In my view, however, the vice of the imputation as presently formulated is that it attributes something to a company which a company is not capable of having as an attribute. 3. The second plaintiff should have leave to re-plead that imputation. In my view, in its present form, it is problematic. 4. The plaintiffs will have leave to re-plead in accordance with these reasons. Any amended pleading should address the matters of particulars addressed at the outset of this judgment. 5. That determines the objections to imputations. 6. Finally, the second and third defendants object to paras 8, 9 and 14 of the pleading, which plead the element of publication against them. The copy of the email tendered during the hearing identifies particular recipients of the email, nine in number. Those persons are listed in para 10 of the pleading. Paragraphs 8, 9 and 14, however, suggest that a case is sought to be brought against the second and third defendants for distribution of the email to persons other than the nine named recipients. 7. Mr Allen responded to the submissions on that issue by providing a copy of a further email dated 16 May, 2016, from Wayne Wallace to various people. In my view the terms of that email rather tend to confirm that the only document in the publication of which any of the defendants was involved is the email sent by Mr Dingle to the second and third defendants on 22 March 2016 and forwarded by them to nine others on 23 March 2016. The provision of that document went no way to clarifying the issue raised by Ms Barnett on behalf of the second and third defendants. 8. Paragraph 14 of the pleading compounds the problem by pleading a matter of consequence, as follows: As a consequence of: a. Geoff Dingle sending the email to Linda Bowen and Ken Kneipp; b. Linda Bowen forwarding the email; c. Ken Kneipp forwarding the email; The email was received by, or the contents of the email were shown to: 1. Wayne Wallis (General Manager Port Stephens Council) 2. Bruce Mackenzie (Mayor Port Stephens) 3. Brian Farmer (Clarence Town Progress Association) 4. Jason Linane (General Manager Singleton Council) 5. Port Stephens Council Staff 6. Constituents of the Dungog Shire Council, Port Stephens Council and Singleton Council 1. In particular, confusion is created by the use of the passive voice in that part of the pleading, in the words, "The email was received by, or the contents of the email were shown to." It should be made clear in the pleading whether it is alleged that that was done by either the second or the third defendant. If the case is confined to the allegation that the email was forwarded to the nine persons named in para 10, that should be made plain. If some other case is brought, that should be made plain. If it is a question of relying upon the "grapevine" effect, that should be made plain. The current pleading does not make any of those matters clear and should be amended in that respect also. 2. I grant leave to the plaintiffs to file and serve an amended statement of claim within 14 days, without prejudice to the defendants' right to take any further objection. 3. I stand the proceedings over to 2 June 2017 for further first listing. ********** 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: 22 May 2017