Supreme Court New South Wales Medium Neutral Citation: Wilson v Basson [2019] NSWSC 1449 Hearing dates: 18 October 2019 Date of orders: 21 October 2019 Decision date: 23 October 2019 Jurisdiction: Equity Before: Slattery J Decision: Plaintiff/cross-defendant's strike out motion is dismissed. Order that the plaintiff/cross-defendant pay the defendant/cross-claimant's costs of the strike out motion. The plaintiff/cross-defendant's motion to amend is declined but the plaintiff/cross-defendant is granted leave to circulate a further proposed amended statement of claim. The plaintiff/cross-defendant is ordered to pay the defendant/cross-claimant's costs of the motion for leave to amend. Catchwords: PRACTICE AND PROCEDURE – motions – costs – plaintiff/cross-defendant seeks to strike out part of a cross claim – plaintiff/cross-defendant does not wish to proceed with her strike out motion – consensus as to outcome – argument as to costs – whether costs should lie where they fall – whether either party has conducted herself unreasonably, or whether one or other party was certain to succeed. PRACTICE AND PROCEDURE – amendment of pleadings – plaintiff brings motion for amendment to statement of claim – new allegations of oral defamation to be introduced by the proposed amendment – whether the proposed amendments sufficiently identify the defamatory words alleged to have been spoken and the occasions upon which the defamatory words were said and the persons responsible for them – whether the amendments should be allowed. Legislation Cited: Limitation Act 1969, s 14B Uniform Civil Procedure Rules 2005, r 15.19 Civil Procedure Act 2005, ss 22, 56 Cases Cited: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 Baker v Martin [2014] VSCA 302 Collins v Jones [1955] 1 QB 564 Gumina v Williams (No. 1) (1990) 3 WAR 342 Martech International Pty Ltd v Energy World Corp Ltd [2004] FCA 1470 Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd (No. 2) [2006] FCA 1542 Pollack v Harris [2001] NSWSC 852 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Tournier v National Provincial and Union Bank of England [1923] All ER Rep 550 Texts Cited: TK Tobin and NG Sexton, Australian Defamation Law in Practice (1991, Butterworths), at [25,075]. Category: Procedural and other rulings Parties: Applicant: Jessica May Wilson Respondent: Mary Jane Basson Representation: Counsel: Applicant: E. Young Respondent: D. Pritchard SC; T. Senior Solicitors: Applicant: M Cakic – MC Lawyers Respondent: D.R.S Creais - Bartier Perry File Number(s): 2018/393886 Publication restriction: No Judgment 1. Jessica Wilson and Mary Jane Basson were once close. Ms Basson, a retired barrister with an interest in horses took Ms Wilson in to work on her property. There Ms Wilson assisted on the property, including in the care of Ms Basson's horses. This suited Ms Wilson, a younger woman who needed accommodation and financial support, and who also had equestrian interests. 2. But Ms Wilson and Ms Basson fell out. The reasons in their relationship break down are far less clear than the accusations that they now level at one another in these proceedings. 3. Ms Wilson alleges, as plaintiff, that she was promised a share in some of Ms Basson's racehorses, in consideration for her working at Ms Basson's property. One of those racehorses gained unexpected success. Ms Wilson contends Ms Basson then forced Ms Wilson to reduce her ownership interest in the horse, in circumstances that are alleged to be unconscionable. Ms Wilson further alleges Ms Basson has been defaming her throughout Wollongong and South Coast districts where they are both known, accusing her of fraudulent misappropriation from Ms Basson. 4. Ms Basson vigorously denies any wrongdoing. In her cross-claim she responds with equally serious allegations. She contends that Ms Wilson was indeed stealing from her and had been over a long period. She now claims to recover the monies that she says Ms Wilson has fraudulently misappropriated from her. Ms Wilson denies she stole from Ms Basson. 5. The parties presently contest a pleading issue in the Applications List. The proceedings are still some way from trial. Ms Wilson brings two motions. The first, a strike out motion, has been resolved. But the Court is asked to determine the issue of the costs of that motion. The Court must also adjudicate upon the other motion to amend the Statement of Claim. The Costs Issues – The Cross-Claim Strike-Out Motion 1. Ms Wilson's first motion, filed on 31 July 2019, sought to strike out causes of action pleaded in the Further Amended Statement of Cross-Claim, not by Ms Basson as cross-claimant, but on behalf of Ms Basson's family company, Grandiflora Press Pty Limited ("Grandiflora"), as second cross-claimant. Ms Wilson contended that as Grandiflora was not a defendant in the proceedings, it was not entitled to be joined as a cross-claimant against her. 2. Ms Wilson no longer wishes to press that motion. She contends that in these circumstances the costs of the motion should lie where they fall. The cross claimants' contend that Ms Wilson, as cross-defendant, capitulated on her 31 July 2019 motion and should now pay costs. 3. Ms Basson wished to add her company Grandiflora into the cross claim because a point was taken by Ms Wilson in the defence of the original cross claim that some of the monies claimed to have been stolen were Grandiflora's monies, rather than those of Ms Basson. The Further Amended Statement of Cross-Claim seeks to bring proceedings in the name of all parties claimed to be entitled to the monies allegedly misappropriated. 4. On 11 October 2019, Ms Wilson's attorneys wrote to Ms Basson's attorneys, stating that they no longer sought to press the strike out motion and would consent to its dismissal. The same letter proposed costs of the motion be reserved. 5. The exercise of the Court's discretion to make an order for costs when an applicant does not wish to proceed with an application, or where respondents have consented to an application, or the parties have otherwise agreed on the outcome of the application or proceedings is informed by principles stated in two Australian leading cases. The first is a statement of Hill J in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194, at 201; (1993) 116 ALR 523; cited in Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd (No. 2) [2006] FCA 1542, (at [5]): "(1) Where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order … (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial … This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them (4) In a particular case it might be appropriate for the court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation … (5) Where the proceedings terminate after interlocutory relief has been granted, the court may take into account the fact that that interlocutory relief has been granted … [Footnotes omitted]". 1. The second statement is that of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, at 624-5; (1997) 143 ALR 1, at 3; [1997] HCA 6: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. [Footnotes omitted]". 1. Based on Lai Qin's case, Ms Besson submits that she is entitled to an order for costs against Ms Wilson both because Ms Wilson has acted unreasonably and because Ms Wilson has effectively capitulated in circumstances where Ms Besson says she was bound to succeed on the motion. 2. In the application of these principles, the Court will make an order for costs against Ms Wilson. After Ms Wilson's attorneys filed and served the 31 July 2019 strike out motion, Ms Wilson's attorneys wrote on 7 August 2019 pointing out that existing authority, namely Martech International Pty Ltd v Energy World Corp Ltd [2004] FCA 1470 ("Martech") at ([1] – [2]) and ([27]), makes clear that it is not beyond the powers of the Court to permit a new party to be added as a cross claimant, notwithstanding that the cross-claim was properly instigated by an existing party to the proceedings. 3. Ms Wilson argues that Martech was decided in 2004 and since then the enactment of the Civil Procedure Act 2005 ("CPA"), s 22 only expressly empowers the bringing of cross claims, in narrow circumstances, namely by existing defendants. 4. In my view, although it is a case decided under the rules of the Federal Court of Australia the reasoning in Martech is generally applicable to the present circumstances, and would readily justify the bringing of this cross-claim by Ms Basson with the addition of another cross claimant Grandiflora. The reasoning in Martech is based on the case management powers of the Federal Court, which are substantially similar in both cases, and the Federal Court Rules which have the same structure as CPA, s 22. 5. Even if Ms Wilson's interpretation of the limits of CPA, s 22 were to be accepted, seeking to argue such a point is a waste of the Court's time because it fails to address the inevitable procedural outcome, to which Ms Wilson should have had regard. 6. There was always an easy procedural answer to this point. If there were thought to be any doubt about the capacity of Grandiflora to join in the cross-claim for technical reasons, Ms Wilson should have accepted in any event that Grandiflora could have started separate proceedings concerning the same subject matter, and Ms Wilson should have agreed to those proceedings being consolidated with Ms Basson's cross-claim against her in these proceedings. The same effect as launching the presently framed cross-claim would thereby have been achieved. 7. All these issues should clearly be heard together to fulfil the objective avoiding multiplicity of proceedings and giving full and proper effect to Civil Procedure Act, s 56. This is most especially so where the proposed joinder of Grandiflora was directly responsive to issues raised by Ms Wilson. 8. In the Court's view, because of Martech and these procedural considerations, this application was bound to fail. Ms Wilson should pay Ms Basson's costs of the motion. The Pleading Issues – The Second Motion 1. Ms Wilson's second motion, filed on 13 August 2019, seeks the Court's leave to amend her Statement of Claim in two respects. Her existing Statement of Claim seeks relief against Ms Basson for unconscionable conduct and in defamation. The latter claims are based on certain clearly identified and allegedly libellous written communications from Ms Basson. 2. Ms Wilson's proposed amendments seek to add two components to her existing Statement of Claim. One amendment is contentious and the other is not. The non-contentious additional component comprises allegations that Ms Basson failed to pay Ms Wilson wages and other employment entitlements that Ms Wilson claims are due to her. These allegations are set out between paragraphs [73] and [89] of the proposed Amended Statement of Claim that was provided with Ms Wilson's 13 August 2019 motion. These amendments will be allowed by consent. 3. The contentious amendments being proposed by the addition of paragraphs 65A and 65B to the existing Statement of Claim add allegations of slander against Ms Basson. Ms Wilson seeks to add allegations that Ms Basson "made a large number of defamatory oral statements about the plaintiff to a large number of people" in paragraph 65A. Ms Basson says that this is an impermissible form of pleading of a case based in oral defamation. 4. The starting point for analysis is the form of the proposed paragraph, [65A]. "65A. During at least the period in or about mid-June 2018 to the end of August 2018, the defendant made a large number of defamatory oral statements about the plaintiff to a large number of people in the horse racing industry on a large number of occasions ("Defamatory Oral Statements'' Particulars (a) The precise number of Defamatory Oral Statements made bv the defendant about the plaintiff is unknown to the plaintiff as they were said in the absence of the plaintiff. The plaintiff will rely upon the evidence of the witnesses who saw and heard the Defamatory Oral Statements. (b) The Defamatory Oral Statements are those, or to the effect of those, listed in Schedule G. (c) The number of people to whom the Defamatory Oral Statements were made is unknown to the plaintiff as they were said in the absence of the plaintiff. The plaintiff will rely upon the evidence of the witnesses who saw and heard the Defamatory Oral Statements. As best the plaintiff can currently ascertain, the Defamatory Oral Statements were said to at least several dozen people in the horse racing industry, including but not limited to Aaron Parker (Schedule G paragraphs 1, 2, and 3), Kerry Parker (Schedule G paragraphs 4. 5. and 6), and Lidia Dimovska (Schedule G paragraphs 6, 7, and 8). (d) The occasions on which the Defamatory Oral Statements were made is unknown to the plaintiff as they were said in the absence of the plaintiff. The plaintiff will rely upon the evidence of the witnesses who saw and heard the Defamatory Oral Statements. As best the plaintiff can currently ascertain, the Defamatory Oral Statements were said at various times in and around the property at which Kerry Parker operated a business of stabling and training race horses to at least Kerry Parker and Lidia Dimovska, at various places and times unknown to the plaintiff but in and around Wollongong and the mid-south coast region of New South Wales to persons unknown to the plaintiff, and in and around the Brisbane Racing Club and Eagle Farm Racecourse in Queensland at or about the time of the Queensland Derby in about July 2018 to at least Aaron Parker. (e) The plaintiff will also rely upon such evidence and provide further particulars as arises from discovery and subpoenas." 1. Paragraph [65B] pleads that the words spoken in the alleged oral defamatory statements pleaded in paragraph [65A] "in their natural and ordinary meaning were defamatory of the plaintiff and conveyed the following imputations". Some ten imputations are then pleaded based on various combinations of imputations that are already identified in schedule G of the existing statement of claim; imputations said to arise from the allegedly libellous material that is already pleaded. Paragraph [65B] is structured to use the same imputations as arise from the already pleaded written defamatory material. But paragraph [65B] pleads they give rise to other imputations, in various combinations. Without reproducing the whole of paragraph 65B, it is sufficient for present purposes to have reference to schedule G in the existing Statement of Claim which provides as follows: "Schedule G Jessica is the number one most hated person in Wollongong. Jessica has stolen from me. Jessica has committed fraud which is a criminal offence that could result in her going to gaol. Jessica has been stealing from me for many years. Jessica has ripped me off. Jessica is not to be trusted. Jessica is a grubby little thief. Jessica is not a fit and proper person to be handling horses." 1. Ms Wilson contends this is a sufficient pleading. Ms Basson disputes that. In my view, the proposed pleading is unacceptable for a number of reasons. 2. The starting point is the obligations to give particulars under Uniform Civil Procedure Rules 2005 ("UCPR"), r 15.19 in relation to Statements of Claim for defamation. Rule 15.19(1)(a) provides as follows: "(1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following: (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified," 1. Particulars that are "sufficient to enable publication to be identified" in respect of an oral publication of alleged defamatory material would ordinarily include the matter published, the time and place where the defamatory words were said to have been spoken, and the persons to whom they were spoken. That is indeed the position at common law where such particulars must be provided: Collins v Jones [1955] 1 QB 564; [1955] 2 All ER 145 ("Collins"), at 571– 572, Baker v Martin [2014] VSCA 302 and TK Tobin and NG Sexton, Australian Defamation Law in Practice (1991, Butterworths) ("Tobin and Sexton"), at [25,075]. 2. In an action for oral defamation the plaintiff must set out verbatim the words relied upon as conveying the defamatory meaning, but at trial it will suffice if the plaintiff proves that words substantially to the same effect as those pleaded were spoken by the defendant: Tournier v National Provincial and Union Bank of England [1923] All ER Rep 550; [1924] 1 KB 461 at 488, and Tobin and Sexton (at [25, 025]). 3. Unless the plaintiff was present when the alleged slander was spoken, and the plaintiff will often not be present, the plaintiff will have to rely upon reports of others as to what was said and using those reports reconstruct and plead what is alleged to have been said; but the plaintiff is not entitled simply to guess at the words or to commence proceedings as a fishing expedition to see if the plaintiff has a case: Collins, and Tobin and Sexton (at [25,025]). 4. In cases of slander that the plaintiff often does not know the names of all, or indeed any, of the persons to whom the publication was made. In such circumstances, it may be sufficient for the plaintiff to give the best particulars that can be provided, even if that may lead to the early disclosure of the names of the witnesses that the plaintiff will call: Tobin and Sexton (at [25,075]), and Gumina v Williams (No. 1) (1990) 3 WAR 342. 5. It may be that a plaintiff is unable to set out in the plaintiff's Statement of Claim the exact words of a libel or slander. In those circumstances the proper course is to set out the closest approximation but to do so with reasonable certainty: Collins and Pollack v Harris [2001] NSWSC 852. 6. The proposed Amended Statement of Claim fails to comply with these principles in several ways. First, it is consciously open ended about the occasions of publication, pleading that publication occurred on "a large number of occasions" and during a period of "at least" three months in 2018. It is impossible to know by looking at paragraphs [65A] and [65B] of the pleading to know how many occasions during the period in question defamatory statements are alleged to have been made. 7. This offends the fundamental requirement of particularity for oral defamation. Ms Wilson should plead the best time and date of each occasion of publication that she has, and be as precise as her available evidence will allow. It can be accepted that precision may be difficult. But she has some evidence on which to base her allegations and she must do her best to confine the occasions of publication to a limited number, which she can actually identify, and at which she can prove what was said. If this means limiting the Amended Statement of Claim to things that the plaintiff now knows about, then that is the way to plaintiff must plead her case. 8. If Ms Wilson wants to explore the possibility of publication on other occasions, then preliminary discovery mechanisms are available to her to achieve this: see UCPR, r 5.3. But it is not an admissible form of pleading for the plaintiff keep her options open by pleading "a large number of occasions" or to talk about publication on "at least" a number of occasions. If this were to be permitted the trial would go off the rails and descend into an all-consuming contest about where, when and how often slander may have occurred. 9. Secondly, the proposed Amended Statement of Claim also fails to particularise on each occasion of publication, the words that were alleged to have been said. Ms Wilson must limit the occasions, on which she relies, so that the words published on each occasion can be identified. 10. Finally, the Amended Statement of Claim does not particularise the identity of any person to whom the defamatory statements are alleged to have been spoken by Ms Basson. It can be accepted that on a number of the occasions in question the persons cannot all be identified. But there is affidavit evidence available to the plaintiff which identifies some of the occasions and the listeners. The way the plaintiff's case appears to be being conducted is that she infers from what was said, and the way it was said, that there must have been other occasions and the listeners. But that is not a sufficient basis to plead unspecified oral defamatory words on unspecified occasions. 11. The plaintiff must give the best particulars she can of who was present on each of the occasions that she can identify. And this should not be done by the way the plaintiff does by cross-referring it to paragraphs of her affidavits. This requires interpretation of her evidence. She should give proper particulars, so that the defendant does not have to cross-reference and construe a number of other documents to work out what are basic particulars of each publication. For example, alleging that the plaintiff spoke to "a large number of people in the horseracing industry" is unsatisfactory. The plaintiff must limit herself to particular words on particular occasions where identifiable witnesses were present and plead them accordingly. 12. The need for some precision about the dates of the publication is all the more important because Limitation Act 1969, s 14B provides for a one-year limitation period from the date of publication of the matter complained of. Presently the period relied upon is described in the Statement of Claim as "at least the period in or about early June to the end of August 2018". Most of this material would now be statute barred but some of it may not be. This is all the more reason for requiring greater precision in this pleading. 13. But Ms Wilson's pleading is certainly capable of being rectified. There is affidavit evidence of some slanderous statements being made about her. It would be unfair to prevent her from attempting to re-plead and the Court will permit her to do that within a confined timetable. An opportunity for re-pleading is provided in the orders and directions below. 14. Ms Wilson sought to justify the proposed pleading on the basis that it was admissible as a pleading of aggravation of the alleged libels in the existing Statement of Claim, leading to an award of aggravated damages. That the pleaded material might be used found a claim for aggravated damages may be accepted. But the problem in this case is that it is not just being advanced on that basis but as the foundation of a separate cause of action with separately identified imputations placed on the newly pleaded slander. And to the extent that the pleading fulfils that function, it is problematic in the way the Court has identified. It is not saved by the fact that it may also be used to found a claim in aggravated damages. 15. The plaintiff, Ms Wilson, has failed on the 13 August 2013 motion. I see no reason why costs should not follow the event. She will be ordered to pay Ms Basson's costs of the motion. The opportunity to re-plead does not change this outcome. Any dispute that occurs after she exercises her opportunity to re-plead can be addressed as a separate contest but costs to date will be ordered against her. 16. Accordingly, the Court makes the following orders and directions: 1. Dismiss the plaintiff/cross-defendant's motion filed on 31 July 2019 ("the 31 July 2019 motion"). 2. Order the plaintiff/cross-defendant to pay the cross claimants' costs of the 31 July 2019 motion. 3. In relation to the plaintiff's notice of motion filed on 13 August 2019 ("the 13 August 2019 motion") for leave to file a proposed Amended Statement of Claim, grant leave to the plaintiff to file the proposed Amended Statement of Claim attached to the 13 August 2019 motion but only to the extent that it proposes amendments in relation to alleged unpaid wages and employment entitlements and not otherwise. 4. Grant leave to the plaintiff, if she so chooses, by 5pm on Friday 8 November 2019, to serve a further draft Amended Statement of Claim re-pleading the allegations of oral defamation currently pleaded in, or derived from, paragraphs [65A] and [65B] of the proposed Amended Statement of Claim attached to the 13 August 2019 motion. 5. Note that the Court anticipates delivering reasons for these orders by Friday 25 October 2019. 6. Order the plaintiff to pay the costs of the 13 August 2019 motion incurred to date. 7. Grant liberty to apply between 8 and 22 November, in relation to any attempt by the plaintiff to re-plead the allegations of oral defamation pursuant to order 4 hereof. ********** 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: 23 October 2019