Le Mottee v Dingle

HER HONOUR: These are proceedings for defamation commenced by two plaintiffs. The first is Mr Paul Le Mottee. The second Le Mottee Group Pty Ltd, a company of which Mr Le Mottee is the director.

The fact that the second plaintiff is a company raises the need to consider s 9 of the Defamation Act 2005 (NSW), which restricts the right of companies to sue for defamation. The section provides:

The issue whether the corporate plaintiff falls within the definition of an excluded corporation was raised in correspondence with the plaintiffs on behalf of the defendants in a letter dated 26 May 2017 sent by the solicitor for the second defendant. The first defendant seeks to raise the same issue.

The existing pleading, an amended statement of claim filed on 19 May 2017, addresses that issue by contending that the second plaintiff was an excluded corporation because it is not related to any other corporation and had fewer than ten full-time employees as at the date of publication. Particulars of that contention assert that the company had fewer than ten full-time employees:

Section 9 has been construed, in its reference to a person the company employs, to refer to a full-time employee. Assuming that means a person who works a 38-hour week, the defendants calculated that, excluding the director Mr Le Mottee, the identified employees reached 9.72 employees, falling some 2.8% short of the excluding quota (my calculation reaches a different conclusion but the difference is insignificant).

In those circumstances, understandably, the defendants sought to press the plaintiffs as to the position of the director, Mr Le Mottee. The particulars sought in the letter of 26 May 2017 were:

The plaintiffs responded to that question by reiterating that the statement of claim asserts that a director is not an employee and asserting that the question was therefore irrelevant. I disagree. In my view, the defendants are entitled to the information sought. Plainly, there will be a real issue in these proceedings as to whether the second plaintiff is an excluded corporation within the meaning of s 9 of the Defamation Act.

Ms Chrysanthou has foreshadowed the prospect of having that issue determined as a separate question and to that end seeks an order that the plaintiffs answer the questions set out above in verified form. In my view, that is a sensible course calculated to facilitate the determination of that issue in accordance with the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW).

Separately, a question is raised on behalf of the second defendant as to the basis on which she should be held responsible for the further circulation of the defamation sought to be pleaded in par 20 of a proposed further amended pleading, which provides:

A list of the names of the alleged recipients of the email followed.

It will be necessary for the plaintiff to confirm whether it is contended that it was a natural and probable consequence of Linda Bowden's sending the email to the persons identified in par 8 of the proposed further amended pleading that it would be drawn to the attention of Wayne Wallis, the General Manager of the council. If that is not the basis on which par 20 is pleaded, then it should be indicated what is the basis for that contention.

Finally, Ms Chrysanthou, on behalf of the first defendant, seeks further particulars of the allegation in par 19 of the proposed further amended pleading which presently reads:

As correctly noted by Ms Chrysanthou, the paragraph is deficient, at least in respect of the contention or assumption that a company is capable of suffering hurt and embarrassment. Ms Chrysanthou submits that the issue is more complex than that and proposes to seek further particulars or raise an objection in correspondence within the next seven days.

For those reasons I make the following directions: