FEDERAL COURT OF AUSTRALIA

Metcash Trading Limited v Bunn (No 3) [2008] FCA 1584

METCASH TRADING LIMITED (ACN 000 031 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) and AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN

SAD 29 of 2006

LANDER J

15 OCTOBER 2008

ADELAIDE (VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1.                   The respondent’s application to amend his defence in accordance with the proposed second further amended defence exhibited to his affidavit filed on 23 September 2008 be dismissed.

2.                   The respondent pay the applicants’ costs.

3.                   The transcript of today’s hearing be made available to the respondent.

4.                   The respondent’s application for further and better discovery be listed for hearing on Wednesday, 29 October 2008 at 2.15pm.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is another application by the respondent who is unrepresented to amend his defence in this proceeding.  The applicants’ claim against the respondent raises a number of different causes of action.  The applicants claim that the respondent threatened to disclose confidential information in breach of his obligations to the applicants.  Next they claim he threatened to interfere with contractual relations between the applicants and their customers and suppliers.  Thirdly, there is a claim that the respondent has contravened the Trademarks Act 1995 (Cth).  Fourthly, and more importantly for the purpose of these reasons, the applicants claim that the respondent has defamed them.  Alternatively, there is a claim for injurious falsehood.

2                     Lastly, the applicants claim that the respondent has breached s 52 of the Trade Practices Act 1974 (Cth) in relation to particular claims that the respondent has made that he is the promoter and a personal guarantor pursuant to guarantees of a former trading customer of IGA and is acting or purporting to act on behalf of that customer.

3                     The respondent filed a defence and was met, in due course, with an application by the applicants for further and better particulars.  A further amended defence was filed and in reasons which I gave on 17 December 2007 I struck out a paragraph of that defence.  On that occasion I ruled that the amended defence lacked sufficient particularity.

4                     The respondent has received pro bono legal assistance to draft the proposed defence.  Initially, the respondent proposed to file a defence which was exhibited to an affidavit of his of 14 May 2008.  However, when that application came on for hearing, he advised the Court that he no longer wished to proceed with that document because he had understood from the written submissions made by the applicants that the document was defective and “he wished to address the applicants’ concerns”.  On 2 September 2008 I dismissed the notice of motion which sought to amend the respondent’s defence in accordance with the document exhibited to his affidavit of 14 May 2008.

5                     On 23 September 2008 the respondent filed a further affidavit which exhibited the second further amended defence which is a defence which he propounds for the purpose of today’s hearing.  Unfortunately, the proposed second further amended defence does not address the complaints which the applicants identified in their written submissions which were filed in the Court in response to the previous proposed further amended defence on 20 August 2008.  Notwithstanding that the respondent was in receipt of those written submissions, the respondent does not seem to have addressed the deficiencies identified by the applicants at that time.

6                     The thrust of the applicants’ objection to the proposed further amended defence is that the defence does not give proper particulars of the plea of justification, the plea of fair comment and the plea of qualified privilege, all of which have been raised in answer to the fourth cause of action raised by the applicants, namely, defamation.  I think it unnecessary to go through the proposed further amended defence in detail because I think the applicants’ complaint is glaringly obvious.  The applicants have pleaded that a number of imputations arise out of publications which have been identified in paragraphs 20, 22, 23 and 25-28 of the applicants’ statement of claim in two separate ways; first, in their natural and ordinary meaning; and secondly, by way of innuendo.

7                     The applicants have given particulars of how it is said that the words might be understood in the way that the applicants later plead by way of innuendo.  The applicants’ pleading is what would be described as a conventional defamation plea.  First, they identify the publication; secondly, they identify the way in which the publication might be thought to be defamatory; and thirdly, and appropriately I think as the authorities now say, they plead the various imputations which they say arise out of each of the publications.  The way in which the applicants plead their case makes it necessary for the respondent to identify the particulars which the respondent would rely upon to answer each of the imputations, if he wishes to plead all three of the defences to which I have referred.

8                     He has not given any particulars in his plea of justification.  What he has done is to repeat the imputation, sometimes expand it, sometimes change it and then add detail of why he says, in the very broader sense, the imputation has been answered.  In, for example, paragraph 46.1.1 of the applicants’ statement of claim, the applicants have pleaded that the imputation which arises is that the applicants breached their contractual obligation to supply goods to Chadmar at the prices set out in the agreements between the applicants and Chadmar.  Chadmar was a company controlled by the respondent.

9                     The respondent attempts to plead justification by pleading in paragraph 46.1(d):

Does not admit the matters alleged in paragraph 46.1 but says that to the extent that any individual publication may have had the meaning alleged therein such meaning was

(i)         True (and to the extent that this may be necessary under the law of any jurisdiction at the time of publication, in the public interest in that there is a public interest in revealing inappropriate commercial conduct by major corporations, and in dealings between the applicant and Chadmar which had been the subject of litigation, involving the performance of functions of large public companies and in the structure of retail distribution in Australia) and to the extent the publications, are subject to the Uniform Defamation legislation, are substantially true within the meaning of section 25 of the Defamation Act 2005 of New South Wales, Victoria, Queensland, Western Australia and Tasmania, section 23 of the Defamation Act 2005 (South Australia), section 22 of Defamation Act 2005 (Northern Territory), section 23 and section 135 of the Civil Law (Wrongs) Act 2002 (Australian Capital Territory).

10                  That plea is no more than a denial.  There is nothing more to it than a denial that the words are defamatory and that, indeed, the words which have been published are true.  The respondent then gives what he says are particulars of the plea of justification.  He pleads:

(A)       The Applicants breached their contractual obligation to Chadmar to supply goods to Chadmar at the prices set out in the agreements dated 21 March 1997, between Chadmar Enterprises Pty Ltd and Kayso Pty Ltd, jointly and severally, and the Applicants, in that the Applicants did not supply goods at the ‘Strip net cost’ specified at point 3 therein, but at higher prices.  Nor did they pay rebates due to Chadmar and Kayso under the agreements, for goods purchased by Chadmar and Kayso from the applicants specified at point 2 and point 6 therein; nor did they allow the Tempo Group (Chadmar and Kayso) to collect its own co-operative funds, nor do its own marketing as the Applicants did not send a global letter to all suppliers and manufacturers, recognising Tempo Group as a marketing banner, as specified at point 1 therein; nor did they comply with the service fees and freight charges, as specified at point 2 therein, but charged different and higher service fees and freight charges; nor did the Applicants advise or pass off invoice or warehouse TPR’s as specified at point 8 therein; nor did the Applicants provide 2 PDE’s at no cost as specified at point 11 therein.

11                  Kayso is also a company which was controlled by the respondent at the relevant time and the Tempo Group was also controlled by the respondent at the relevant time.

12                  The opening words of the particulars are no more than a re-statement of the imputation.  The imputation has then been enlarged to identify, what is said to be, the contractual arrangements between Chadmar and Kayso and the applicants.  The particulars then refer to various points which, it may be assumed, although it is not stated in the particulars, are points contained within the contracts which are referred to in the particulars themselves.  Then the particulars identify various breaches of those points, but at no stage does the pleader identify when and how it was that the breaches occurred.  Nor are the facts and circumstances surrounding the various breaches identified.  The particulars are not particulars of a plea of truth and, indeed, they do not meet directly the plea which is made in the imputation in the statement of claim.

13                  The same defect is inherent in the separate pleas of justifications to the various imputations which have been pleaded by the applicants.  I do not intend to go through each of the various paragraphs which are said to be particulars of the pleas of justification, but as I say, the pleas are defective in that they do not offer any proper particularity of what is said to support the plea of truth.  The plea of fair comment is defective in that it relies upon the pleas of justification for the pleas relating to the facts upon which the comment is based.  But the plea is no better than the plea which I rejected on the last occasion.  The plea of qualified privilege still fails to identify the respective duties and obligations on the respondent as the publisher and the persons to whom the publication has been made which would make the occasion one of qualified privilege, and contains no further particularity than that which was contained in the original defence.

14                  In my opinion, it would be inappropriate to allow this defence to be filed in circumstances where it contains so many defects.  It does not address the issues which the applicants have sought the respondent address for now more than 12 months.  It has the same defects in the paragraphs of the defence which I struck out.

15                  The application to amend the respondent’s defence in accordance with the proposed second further amended defence, exhibited to the affidavit of Peter Chadley Bunn, sworn on 23 September 2008 and filed on the same day, is refused.

16                  The respondent must pay the applicants’ costs.

Associate:

Dated:         27 October 2008