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Electrical Trades Union of Employees Queensland v National Electrical Contractors Association[2007] QDC 77

Electrical Trades Union of Employees Queensland v National Electrical Contractors Association[2007] QDC 77

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Electrical Trades Union of Employees Queensland & Anor v National Electrical Contractors Association & Anor [2007] QDC 077

PARTIES:

THE ELECTRICAL TRADES UNION OF EMPLOYEES QUEENSLAND

First Plaintiff

AND

RICHARD WILLIAMS

Second Plaintiff

AND

THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION

First Defendant

AND

PETER GLYNN

Second Defendant

FILE NO/S:

BD 958/06

DIVISION:

 

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

2 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2007

JUDGE:

McGill DCJ

ORDER:

Statement of claim filed on 3 April 2006, insofar as it pleads a claim on behalf of the first plaintiff, struck out, with liberty to replead.

CATCHWORDS:

DEFAMATION – Pleadings – corporate plaintiff – need to plead facts showing financial loss – pleading struck out with liberty to replead.

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 – applied.

Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8 – cited.

Development and Environmental Professionals Association v John Fairfax Publications Pty Ltd [2004] NSWSC 92 – followed.

Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 401 – considered.

Jameel v Wall Street Journal Europe SPRL [2006] 3 WLR 642 – considered.

Kay v Chesser [1999] 3 VR 55 – considered.

New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 – applied.

Selecta Homes and Building Co Pty Ltd v Advertiser – Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 – considered.

Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 – considered.

COUNSEL:

M. P. Amerina for the plaintiffs

P. D. T. Applegarth SC and J. O'Regan for the defendants

SOLICITORS:

Hall Payne Lawyers for the plaintiffs

Thynne and Macartney for the defendants

  1. [1]
    This is an application to strike out the claim of the first plaintiff, or in the alternative to strike out parts of the claim, or in the further alternative to obtain an order that certain particulars of the statement of claim be provided. The application was made returnable on a date which had already been fixed as the return date of an application in the same proceeding filed on behalf the plaintiffs, and was filed shortly before the expiry of the time limited by a letter pursuant to r 444, and hence in breach of the rules.  The plaintiffs opposed leave being given to enable the application to be heard at the same time as the plaintiffs’ application, but I decided to give leave because it was convenient for both applications to be heard at once, and because there had in fact been no favourable response on behalf of the plaintiffs to the r 444 letter before the time limited by it did expire, nor was there any suggestion that, but for the filing and service of the defendants’ application, there would have been such a favourable response.  An order was made on the plaintiffs’ application on the date of hearing but after hearing argument in relation to the defendants’ application I reserved my decision.

The action

  1. [2]
    The action is one for defamation. The first plaintiff is registered as an organisation of employees under Queensland legislation,[1] that is to say it is a Queensland union operating within the Queensland industrial relations system.  The second plaintiff was its secretary.  The first defendant is an employer’s organisation registered under Commonwealth industrial legislation, and the second defendant was its chief executive officer.[2]  The plaintiffs allege that a particular article published in the first defendant’s newsletter defamed each of them.  The article drew attention to newspaper reports that the second plaintiff had admitted receiving a benefit in the form of accommodation costs from an employer in connection with some event, referred to some of the findings of the Cole Royal Commission, and suggesting that the payment of such expenses was not entirely voluntarily as far as the employer was concerned, and (perhaps) that it may have been the result of the sort of conduct condemned by the Cole Royal Commission.  The plaintiffs say the sting of the defamation lies in the fact that the first plaintiff was not one of those unions criticised in this way by the Cole Royal Commission, and complain of being tarred with the same brush.[3]
  1. [3]
    All that is pleaded in relation to the first plaintiff is that it was a body corporate capable of suing and an organisation of employees registered under the Queensland Act (para 1), that the article in question was published of and concerning it (para 5), that “by reason of the publication of the article the reputation of the first plaintiff has been injured” (para 8) and that the first plaintiff claims “on global basis damages … as reparation for the injury sustained to its reputation and as a full vindication of its innocence of the imputations” pleaded:  para [9].
  1. [4]
    The matter is complicated by the fact that paragraph [4] alleges that the publication of the article referred to in paragraph [3] “occurred throughout Australia to all of the employer members of the first defendant and was disseminated widely amongst the officers and employees of those employer members.”  Strictly speaking, each publication of a defamation is a separate wrong and gives rise to a separate cause of action,[4] but in circumstances where there have been a large number of publications, usually only one action is brought in respect of all of them.  Whether the Queensland District Court has jurisdiction in relation to torts committed anywhere in Australia depends on whether its process can be served on the defendant in Queensland or interstate.  This is an action in personam so if a defendant is served in Queensland, then this court will have jurisdiction.[5]  But the claim gives an address of the second defendant in Victoria, and has not given an address of the first defendant at all.  The notice of intention to defend of the defendants gives an address for each of the defendants in Victoria.
  1. [5]
    If service is to occur in Australia outside Queensland, then it must be in accordance with the Service and Execution of Process Act 1992 (Cwth):  UCPR r 123.  Pursuant to s 15 of that Act, the claim in the present matter could be served in any state in Australia, and by s 130 the jurisdiction of this court is not affected by any limitation arising under the law of a state concerning the locality in which the process may be served.  It follows that this court has jurisdiction in respect of all of the publications wherever they occurred in Australia.  On the face of it, it seems to me that that is what is being sued on in the current proceeding.  The damages are claimed as reparation for the injury (para 9), that is the injury to its reputation by reason of the publication (para 8), that is, the publication “throughout Australia”:  para 4.  That is the way that I read the pleading.
  1. [6]
    Where a publication occurs outside Queensland, it will not be subject to the Defamation Act 1889.  On the face of it, the publication referred to in s 5 of the Act is publication in Queensland, and s 7 makes an actionable wrong the publication in Queensland of defamatory matter which is not protected, justified or excused by law.  If the plaintiffs are suing in respect of publication occurring outside Queensland, then the law applicable to such publication will be the law in the place of the publication, so that in respect of each state or territory where publication occurred, it will be necessary to consider whether that publication was actionable, and whether there was any good defence to such publication according to the law of that state or territory.  There is, however, some authority supporting the proposition that, where publication has occurred both within and outside a particular jurisdiction, it is possible to sue only with respect to the torts constituted by the publication within the jurisdiction, but to take into account publication outside the jurisdiction on the issue of damages.[6]  To further complicate matters, it is also recognised that where such a situation arises the defendant is entitled to plead and rely on any defence which would be available in any jurisdiction relied on in this way, so that the defendant would not be prejudiced by this course.[7]
  1. [7]
    It appears that it is open to a plaintiff in a particular case to choose either course, and it seems to follow that it is a matter of some significance that the pleading should make it clear whether the plaintiff is suing in respect of all publications in whatever jurisdiction the publication occurred, or only in respect of publications in Queensland, but taking into account publications elsewhere for the purpose of assessing damages. I would have thought that the way in which the current pleading is drafted clearly enough fell within the former category, but for the fact that counsel for the plaintiffs submitted that the effect of the current pleading was that this proceeding fell in the latter category. In those circumstances, it appears to follow that the pleading does not reveal clearly enough into which category it falls.

The defendant’s submission

  1. [8]
    The main thrust of the defendants’ complaint about the pleading, however, is that as it stands the pleading does not allege facts sufficient to show that the first plaintiff has suffered damage. This was because the first plaintiff was a corporation, and a defamation is actionable by a corporation only to the extent that it results in financial injury to the corporation. The distinction is between injury in the form of financial loss or damage and injury in the form of hurt feelings. The company being an abstraction it has no feelings and therefore cannot suffer injury to them.[8]  It was submitted that it followed that the first plaintiff had to plead facts which would establish that it had suffered financial loss as a result of the defamation, and that in the absence of such a plea, the pleading was defective and, so far as it was a pleading by the first plaintiff, should be struck out.
  1. [9]
    The defendants particularly relied on the decisions of the New South Wales Court of Appeal in New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300.[9]  In that case, Handley JA with whom Powell JA agreed said at p 308 that a corporation “must plead or particularise facts which would establish that the plaintiff has been injured in its pocket.”  In that case, a question had been referred to the Court of Appeal as to the plaintiff’s capacity to sue for defamation, in the light of an earlier decision of that Court[10] based on a matter not applicable here.  This comment was therefore not a matter of crucial importance in the judgment, but was part of a general discussion of the circumstances in which a corporation of any kind can sue for defamation, starting at p 305.  Reference was made to the proposition that a corporation can only be injured in its pocket,[11] and the various ways in which this may occur, including for an incorporated trade union by loss of membership income.  In this context the comment was made, but reference to a statutory power to accept gifts and bequests (which presumably did not have to be pleaded) was enough to save the action.
  1. [10]
    That decision was followed and applied, so as to strike out a pleading, in the Development and Environmental Professionals Association v John Fairfax Publications Pty Ltd [2004] NSWSC 92.  The plaintiff was a registered industrial organisation, and had pleaded that as a result of a particular publication it “has been held up to public ridicule and contempt and has been damaged in [its reputation] and has suffered and continues to suffer loss and damage.”  Levine J held, applying the earlier decision of the Court of Appeal, that the pleading did not disclose an actionable case in defamation, because of a failure to plead or particularise facts which would have established that the plaintiff had suffered financial loss.  The statement of claim was struck out, though with liberty to replead.

The first plaintiff’s submission

  1. [11]
    It was submitted on behalf of the first plaintiff that the decision in that case was simply one which was dictated by considerations of judicial comity, in circumstances where in other related litigation a similar order had been made. Although his Honour indicated that he was acting in comity with the earlier decision, there is nothing in his reasons to suggest that that was the only reason the order was made.  His Honour in doing so noted that the plaintiff had sought to rely on authorities to show there was no need to establish special damage, or injury to its pocket, and the plaintiff in the present case sought also to rely on those authorities.  It seems to me, however, that, far from being inconsistent with the decisions of the New South Wales courts, they are in essence to the same effect.

Other authorities

  1. [12]
    In Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 Neaves J said at p 586 that the plaintiff “being a trading corporation, the allegation that the injury sustained was to its reputation ‘in the way of its trade or business’ was a necessary element of its cause of action.[12]  This element has been established insofar as the imputations numbered 1, 2, 6, and 8 are concerned and for the injury sustained by such defamatory publication damages are at large in the sense that it is unnecessary for Comalco to prove special damage.  It is thus entitled to be awarded compensatory damages for the injury to its reputation in the way of its trade or business.  As a body corporate it can receive nothing by way of solatium.  The damages to be awarded are a recompense for harm measurable in money.”
  1. [13]
    His Honour went on to reject the proposition advanced by Mahoney JA in Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 that a trading corporation may recover damages for injury to reputation as such.  Pincus JA at p 603 also expressed the view that there had been an error by the trial judge in treating a trading corporation as entitled to damages for “reputation as such” apart from any direct or indirect financial loss.  At p 602, he gave the example of an incorporated charity which was permanently endowed from the outset, which did not trade, and there was no question of loss of income from contributions:  he concluded that there was no loss suffered by it for any defamatory imputation of it.
  1. [14]
    In Kay v Chesser [1999] 3 VR 55, the Victorian Court of Appeal was considering the issue of whether a plaintiff corporation in a defamation action was obliged to disclose various financial records, in circumstances where only general damages had been claimed.  Ormiston JA, with whom the other members of the court agreed, said at [12]:

“Although it has sometimes been said that a corporation can only recover in respect of injuries measurable in money … that does not mean that it can only succeed if it makes a claim for special damages, nor does it meant that damage to reputation can only be compensated if calculable in precise money terms.  To the extent of agreeing with that latter proposition, the respondents were correct but they overstated its significance.  The consequence is that damage to the reputation of the corporation is not at large but can only be assessed having regard to financial and commercial considerations by which a corporation’s reputation is ordinarily assessed.”

  1. [15]
    His Honour went on to note that the injury need not necessarily be confined to loss of income because goodwill may be injured, citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 262.  His Honour went on to refer to some other authorities, including Tsolakkis Nominees Pty Ltd v National Australia Bank Ltd (unreported Court of Appeal, 4 June 1998).  In that case, Batt JA, with whom the other members of the court agreed, said:

“An action lies to the suit of a trading company in respect of a defamation calculated to injure its business reputation or goodwill, without allegation of proof of special damage (authorities cited).  Those were cases of libels; but it has also been held that the rule that slander is actionable without allegation or proof of special damage where it reflects on the plaintiff in respect of the plaintiff’s calling or business applies to a company … But a company cannot recover any damages by way of solatium; the damages to be awarded are a recompense for harm measurable in money or proved financial loss.”

  1. [16]
    In that case, quite detailed factual allegations had been made seeking to show that financial loss had been suffered by the company as a result of a defamation. Nevertheless, it was held that no entitlement to general damages had been proved. In relation to general damages, his Honour said:

“As regards the principle that a company may sue for slander of its reputation in the way of its business, the business of the appellant was that of acting as trustee.  The innuendoes pleaded … are not, in my view, calculated to injure the appellant’s reputation in the way of that business, in that they say nothing about the appellant’s conduct as a trustee … The innuendoes actually pleaded relate, rather, to the business of the trust.  On general principle, it appears to me that the appellant, as trustee, is the appropriate person to seek to vindicate the reputation of that business.”

  1. [17]
    His Honour went on, however, to uphold a finding that the business of the trust had no reputation worthy of compensation.  That was because the business did not have or deserve a reputation for stability, soundness or profitability.
  1. [18]
    Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 401 was an appeal against a successful action for damages for defamation by a company.  Winneke P said in a passage beginning at the foot of p 433:

“The true view is … that where a corporation has been slandered in the way of its business, the slander is actionable per se, and it is unnecessary to either allege or prove special damage.  That does not mean that the presumed damage to its reputation can only be compensated if calculable in precise money terms … Damages are not to be assessed for injury to the company’s ‘reputation as such’, but are to be assessed ‘having regard to financial and commercial considerations by which a corporation’s reputation is ordinarily assessed.’  In some cases, the damages assessed may only be nominal; particularly where the court cannot be satisfied that the nature of the defamatory imputation, or the breadth of its publication, has caused significant to the trading reputation of the corporation defamed … If no proof is tendered as specific loss, the assessment of damages is to be made on the material available to the court and the view which it forms of the loss likely to have been suffered by the company as a consequence of the defamatory material which it finds to have been published of and concerning the entity in the way of its business.”

  1. [19]
    It may be added that his Honour had earlier referred to defamatory words spoken of a corporation “calculated to injure it in the way of its business or trading character” as being actionable per se, that is without proof of special damage.
  1. [20]
    In Selecta Homes and Building Co Pty Ltd v Advertiser – Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 Lander J at p 458 said:

“The appellant, being a corporation, is entitled to damages in the nature of compensatory damages but only for injury to its reputation … It did not need to prove any special damage but it was entitled to attempt to establish that it had suffered actual loss of income or earnings by reason of the defamation.  If it could not make out actual loss, it was still entitled to damages if the defamation was calculated to damage the appellant in its reputation in the way of its trade or business.”

  1. [21]
    It was held on appeal that the evidence did allow for a finding that sales had been affected by the defamation, though the number lost was not capable of calculation. That is as one would expect. The defamation in that case was in effect an assertion that the product of the company was unsatisfactory.

Analysis

  1. [22]
    When considering the authorities from interstate, it is necessary to bear in mind that under the common law there is a distinction between libel and slander, and damages for slander are only available on proof of special loss, unless the slander disparaged the plaintiff in its trade or business.[13]  This needs to be borne in mind when considering some of the language in these judgments, even though it is not a feature of the system in Queensland under the 1889 Act.  But it does not seem to me that all of the language is based on that consideration.  It seems to me that all of these authorities show that a corporation can recover damages for defamation but only in respect of financial harm, although it is recognised that harm may take more than one form.  Loss of sales, or diminution of business goodwill, are obvious examples, and it may well be that a corporation can suffer financial loss in other ways.  For example, a corporate charity could suffer a relevant loss through a diminution in donations.  But as Pincus J pointed out, if a corporation functions simply as the trustee of a fund to manage the fund so as to distribute the earnings among worthy charities, it is difficult to see how anything said of the corporation could cause it any financial loss.
  1. [23]
    That does not mean that damages are limited to special damages. The traditional distinction between general and special damages is that general damages are those that the law will presume to be the natural or probable consequence of a defendant’s act, and therefore need be neither proved nor supported by specific allegations in the pleading.[14]  Special damages, on the other hand, are such losses as the law will not presume, and depend on the special circumstances of the particular case.  That I think is a theoretical distinction, and in practice the distinction between general and special damages is largely empirical.[15]  Now under the UCPR rule 155(2)-(4) particulars of general damages must be given, and it is very common for evidence to be led to prove “general damages”, for example in personal injury cases.[16]  If the effect of a general statement of this nature as to the distinction is intended to carry the implication that nothing need ever be pleaded in support of a claim for general damages other than the bare assertion that the plaintiff claims such damages, I think it is going too far and does not reflect the current law or practice.
  1. [24]
    What matters is the situation in relation to actions for defamation by a corporation. In that situation, it seems to me that the effect of the Australian authorities is that the corporation is confined to financial loss, in whatever form it has been suffered. In some cases, that there has been financial loss will be obvious, for example if it is said of a company that its products fall apart in salt water, and the company is in the business of manufacturing ships, then the defamation if proved would obviously be calculated and likely to injure it in its trade or business, so that all that would need to be proved was that it was a company in the business of manufacturing ships. It does seem to me, however, that it would be necessary to prove at least that. If the company were in the business of manufacturing plastic shopping bags, it would not be obvious that the words were defamatory or that they would injure it in its trade or business. It does not necessarily follow that such a plaintiff could not properly plead a case; but it would be necessary to plead facts which showed the basis on which the plaintiff was alleging that it had suffered financial damage in some way as a result of the alleged defamation.
  1. [25]
    The point therefore largely depends on the case the plaintiff is proposing to make at the trial. There may well be more than one way in which a corporation which was a registered trade union could suffer financial loss. A statement calculated and likely to deter relevant employees from wanting to join the union[17] would obviously cause it injury in the loss or potential loss of member subscriptions, although even then it might be necessary to show, and hence to allege, that the union obtained income from its subscriptions.[18]

An English decision

  1. [26]
    Senior counsel for the defendants, after the conclusion of the hearing, properly drew to my attention the decision of the House of Lords in Jameel v Wall Street Journal Europe SPRL [2006] 3 WLR 642.  That case involved an action for defamation by a trading corporation of whom it had been said that it had certain bank accounts which were being monitored to prevent their use for channelling funds to terrorist organisations.  Lord Hope said at p 669:

“It is obvious of course that a trading company has no feelings which are capable of being injured.  Trade is its business, and it is injury to its reputation in regard to its trade that is of the essence in the case … This does not mean, however, that it can only be injured in a way that gives rise to loss which, because it can be calculated, has the character of special damage.  What it means is that it must show that it is liable to be damaged in a way that affects its business as a trading company.  The principle works in the same way in the case of a non‑profit organisation such as a charity.  In its case it is not only its pocket, due to a loss of income, that is liable to be injured.  Injury to its reputation in the eyes of those with whom it must deal to achieve its charitable objects may be just as damaging to the purpose for which it exists.  The principle works in the same way too in the case of other bodies, such as trade unions or other organisations which exist not to trade but to deal with others in the interests of their members or those they represent.  Proof that the body has a reputation that has a tendency to be damaged is an essential element in the claim the false statement was libellous.  As the law stands nothing more need be proved to entitle it to damages.”

  1. [27]
    If that comment means that in the case of a non‑trading corporation such as a trade union it is sufficient that it has a reputation which is capable of being damaged for it to be able to recover damages for defamation, regardless of whether or not the damage is productive of financial loss, it seems to me with respect that that does not reflect the view adopted in the various Australian authorities to which I have referred.  It may be of course that his Lordship was using the word “reputation” in that context as having the same meaning as the reputation in regard to its trade that he mentioned with regard to injury to the reputation of a trading company.  Hence, if the reputation is harmed in a way which causes it financial harm of some kind or other, then that can be the subject of compensatory damages.  But a corporation is not going to suffer injury to its feelings, and is therefore not going to suffer any loss or damage merely as a result of the knowledge that people who know of it think ill of it, or perhaps just less well of it than they otherwise did, if that does not in some practical way adversely affect its financial position.  It does not necessarily mean that the adverse effect has to be capable of calculation.  But there has to be some adverse financial effect rationally demonstrated, that is pleaded and proved.  What needs to be done in order to show that will depend on the circumstances of the particular case.  Insofar as his Lordship’s view was to the contrary, it seems to me that that does not reflect the law in Australia.  Faced with what seem to be essentially similar views, in intermediate appellate courts of New South Wales, Victoria, South Australia and the Federal Court, I should follow that approach rather than the authority of the House of Lords.
  1. [28]
    I might add that in Jameel, the third member of the majority,[19] Lord Bingham, rested his conclusion on the proposition at p 650 that “a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business”  The other two members of the House, Lord Hoffman (p 668) and Baroness Hale (p 688) would have accepted the submission that a commercial company should not be able to sue for libel unless it can prove special damage.  His Lordship said that “a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers.  I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation.”  Baroness Hale approached the matter by reference to where the dividing line should properly be drawn between the right of a company to protect its reputation and the right of the press and the public to be critical of it, and concluded that an appropriate balance would be drawn by confining actionable libels to those which could be shown to be likely to cause financial loss.
  1. [29]
    Insofar as the majority rejected the notion that damages for libel by a trading corporation are limited to special damages, that does reflect Australian law. It seems to me with respect that Lord Bingham went no further than this, though the other members of the majority did and seem essentially to have equated the position of a corporate plaintiff in a libel action in pleading terms with that of a natural person.  It is in this context interesting that two of the five members of the House of Lords would have confined the damages more strictly than the current Australian authorities, while Lord Bingham seems to have come to essentially the same position as that in the Australian decisions to which I have referred.

Conclusion

  1. [30]
    It follows that in my opinion the authorities relied on by the first plaintiff do not show that the case as presently pleaded by the first plaintiff is adequate. The first plaintiff has not pleaded facts which if proved would lead to the conclusion that it is likely to have suffered financial harm as a consequence of the publication of the defamation. Indeed, as the pleading stands, it does not even satisfy the undemanding test of Lord Hope, in that it does not expressly plead that the first plaintiff has a reputation that has a tendency to be damaged.  This is the significance of the fact that the plaintiff on the face of the pleading is suing in respect of defamation throughout Australia.  If that is what the plaintiff is doing, it logically should follow that it is necessary to plead that the plaintiff has a reputation which has a tendency to be damaged “throughout Australia”.
  1. [31]
    Where the plaintiff is relying on defamatory publication in each state and territory, it seems to me that it is necessary to plead facts which show that it was likely to suffer financial loss as a result of the publication in each jurisdiction. If it is simply relying on the publication in Queensland, in respect of liability, but seeking to bring in the publication in other states on the basis of damage, then it seems to me that it also needs to plead the factual basis for the allegation that it has suffered financial loss as a result of publication other than in Queensland. The defamation is not by its very nature something which is calculated and likely to deter members or potential members from belonging to the organisation, and it is important that the basis on which the first plaintiff is going to put its case at trial is disclosed in the pleading, in order to avoid surprise: r 155(4).
  1. [32]
    At one stage during oral submissions it was suggested that the first plaintiff might be able to show that it had suffered or was likely to suffer financial loss as a result of the publication of the defamation because the members of the first defendant would be less likely in the future to make payments of the kind referred to in the article, which had the practical effect of subsidising the first plaintiff’s expenses. It is not necessary for me to say anything about that proposition other than that, if that is the basis on which the first plaintiff is alleging financial loss, it seems to me that the first plaintiff ought to plead that.
  1. [33]
    It seems to me clear that the first plaintiff has not complied with the requirements of r 155, but that is not of particular importance because ordinarily a failure to comply with r 155 would lead to an order for particulars rather than an order that a pleading be struck out.  But the deficiency in the present case is more fundamental than that, as shown by the decision in the Development and Environmental Professionals Association case (supra), where an equivalent deficiency in the pleading in that case did lead to the pleading being struck out.  In my opinion, the decision in that case follows logically from the earlier decision of the New South Wales Court of Appeal, and is consistent with the other decisions of other intermediate appellate courts to which I have referred, and should be followed.  The first plaintiff did not refer me to any other authority to the contrary, or indeed to any Queensland authority where this particular point had been dealt with, at least under the current rules.
  1. [34]
    The first plaintiff referred to the well‑known authorities concerning the test to be applied in relation to an application to strike out a statement of claim,[20] but those authorities were essentially concerned with the situation when a statement of claim was being struck out without liberty to replead.  I am not deciding that the first plaintiff had no seriously arguable cause of action at all, all I am deciding is that the current pleading does not disclose one.  There have been different regimes in place under different rules at different times as to how a deficiency in pleading is to be challenged by the other party, but under the UCPR r 171 permits a court to strike out a pleading which relevantly discloses no reasonable cause of action.  Where that is because the pleading is deficient in point of pleading, the appropriate course is to strike out the pleading, but to give liberty to replead, as was done in the New South Wales case.
  1. [35]
    Accordingly, the statement of claim filed with the claim on 3 April 2006, insofar as it pleads a claim on behalf of the first plaintiff, is struck out.  I give the first plaintiff liberty to replead as it may be advised; on the publication of these reasons I will fix a time limit within which that is to occur.
  1. [36]
    Insofar as the balance of the application was concerned with the pleading by the first plaintiff, it does not seem to me that there is any utility in my dealing further with those matters, since presumably any further pleading which is filed will be different to some extent, and any consideration then of the other matters raised should be in the light of that further pleading. The further submissions were directed in addition to the pleading on behalf of the second plaintiff, and perhaps strictly speaking they could be decided as between the defendants and the second plaintiff, but both plaintiffs are represented by the same counsel and solicitors, and had filed the one pleading, and I suspect that from a practical point of view any consideration of the pleading so far as it is a pleading by the second plaintiff in relation to these other matters should also be postponed until after any new pleading has been filed and served. Accordingly, it is unnecessary or inappropriate to determine any of the other matters agitated in relation to this application. The first plaintiff should, however, pay the defendants’ costs of and incidental to this application to be assessed, on the basis that costs follow the event.

Footnotes

[1]  Statement of Claim para 1(b); admitted defence para 1.

[2]  Statement of Claim para 2; admitted defence para 1.

[3]  Presumably Cole tar.  The identification of the sting of the defamation was orally by counsel for the plaintiffs.

[4] Emmerton v University of Sydney [1970] 2 NSWR 633 at 634, 639; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 178.

[5]  Cairns “Australian Civil Procedure” (5th edition 2002) p 113.

[6] Toomey v Mirror Newspapers Ltd (supra) at 184. 

[7] Toomey v Mirror Newspapers Ltd (Supra) at 186; Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575 at 604.   I note that in David Syme and Co Ltd v Grey (1992) 38 FCR 303 at 327 Gummow J regarded this as an essential condition of such liability.

[8] Lewis v Daily Telegraph Ltd [1964] AC 234 at 262.

[9]  Cited with apparent approval by McPherson JA, with whom Williams JA agreed, in Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8 at [16], in support of the proposition that a corporation that was not a trading corporation or a charity had no reputation that was protected by law.

[10] Ballina Shire Council v Ringland (1994) 33 NSWLR 680.

[11]  Citing Lewis (supra).

[12]  Not because the action was for slander:  it was for libel:  p 512.

[13]  Halsbury. 4th Ed, Vol 28 paras 1, 20.  There are also other exceptions, not applicable to corporations.

[14]  Bullen and Leake “Principles of Pleadings” (13th Ed 1990) p 304.

[15]  For example, Griffiths v Kerkemeyer damages are generally calculated with some precision, but are regarded as general damages:  Van Gervan v Fenton (1992) 175 CLR 327 at 332-3.

[16]  In such cases, there is the further complication that damages may have to be assessed in accordance with the Civil Liability Regulation.  Arguably, in such a situation a plaintiff is required to plead the ISV of the injury or injuries alleged to have been suffered.

[17]  As in National Union of General and Municipal Workers v Gillian [1945] 2 All ER 593; on appeal [1946] KB 81, where the issue was the broader one of whether a union could sue in tort at all.

[18]  I suspect that this is universally the case, but it occurs to me that that might not necessarily be so.  Perhaps some would be prepared to assume that it was so.

[19]  Lord Scott delivered a judgment to the same effect as Lord Hope.

[20]  In particular, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.

Close

Editorial Notes

  • Published Case Name:

    Electrical Trades Union of Employees Queensland & Anor v National Electrical Contractors Association & Anor

  • Shortened Case Name:

    Electrical Trades Union of Employees Queensland v National Electrical Contractors Association

  • MNC:

    [2007] QDC 77

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    02 May 2007

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
1 citation
Jump To
Cite 1 - (1980) 2 NSWLR 225
Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
2 citations
Jump To
Cite 1 - (1986) 12 FCR 510
Cite 2 - (1986) 12 FCR 510
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
1 citation
Jump To
Cite 1 - (1994) 33 NSWLR 680
Criminal Justice Commission v Parliamentary Criminal Justice Commissioner[2002] 2 Qd R 8; [2001] QCA 218
2 citations
Jump To
Cite 1 - [2002] 2 Qd R 8
Cite 2 - [2002] 2 Qd R 8
David Syme & Co Ltd v Grey (1992) 38 FCR 303
1 citation
Jump To
Cite 1 - (1992) 38 FCR 303
Development and Environmental Professionals Association v John Fairfax Publications Pty Ltd [2004] NSWSC 92
2 citations
Jump To
Cite 1 - [2004] NSWSC 92
Cite 2 - [2004] NSWSC 92
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
1 citation
Jump To
Cite 1 - (2002) 210 CLR 575
Emmerton v University of Sydney [1970] 2 NSWR 633
1 citation
Jump To
Cite 1 - [1970] 2 NSWR 633
Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 401
2 citations
Jump To
Cite 1 - [1999] 3 VR 401
Cite 2 - [1999] 3 VR 401
General and Municipal Workers v Gillian [1945] 2 All ER 593
1 citation
Jump To
Cite 1 - [1945] 2 All ER 593
General and Municipal Workers v Gillian [1946] KB 81
1 citation
Jump To
Cite 1 - [1946] KB 81
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
Homes and Building Co Pty Ltd v Advertiser - Weekend Publishing Co Pty Ltd (2001) 79 SASR 451
2 citations
Jump To
Cite 1 - (2001) 79 SASR 451
Cite 2 - (2001) 79 SASR 451
Jameel v Wall Street Journal Europe SPRL [2006] 3 WLR 642
2 citations
Jump To
Cite 1 - [2006] 3 WLR 642
Cite 2 - [2006] 3 WLR 642
Kay v Chesser [1999] 3 VR 55
2 citations
Jump To
Cite 1 - [1999] 3 VR 55
Cite 2 - [1999] 3 VR 55
Lewis v Daily Telegraph Ltd (1964) AC 234
2 citations
Jump To
Cite 1 - (1964) AC 234
Cite 2 - (1964) AC 234
New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300
2 citations
Jump To
Cite 1 - (1998) 43 NSWLR 300
Cite 2 - (1998) 43 NSWLR 300
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
4 citations
Jump To
Cite 1 - (1985) 1 NSWLR 173
Cite 2 - (1985) 1 NSWLR 173
Cite 3 - (1985) 1 NSWLR 173
Cite 4 - (1985) 1 NSWLR 173
Van Gervan v Fenton (1992) 175 CLR 327
1 citation
Jump To
Cite 1 - (1992) 175 CLR 327

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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