Harvey Mathew David Combe v Bartholomew Augustine Santamaria [1986] ACTSC 96 (9 October 1986)

SUPREME COURT OF THE ACT

HARVEY MATHEW DAVID COMBE v. BARTHOLOMEW AUGUSTINE SANTAMARIA
S.C. No. 292 of 1984
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Beaumont J.(1)

CATCHWORDS

Defamation - Appeal from Registrar's decision to strike out defence of qualified privilege - difficulties in determining availability of defence of qualified privilege in advance of trial - usual procedure.

HEARING

CANBERRA
9:10:1986

ORDER

The appeal be allowed.

The orders made by the Registrar on 28 July 1986, including the order as to costs, be set aside.

The application the subject of the plaintiff's notice of motion filed on 18 February 1986 be stood over to a date to be fixed before the trial Judge.

Direct that the defendant file and serve within 21 days any fresh particulars ("the fresh particulars") of the defence of qualified privilege pleaded in paras.4(a), 5(a), 8(a) and 9(a) of his amended defence ("the defences of qualified privilege").

In the event that the plaintiff desires to apply to strike out any of the defences of qualified privilege as particularised in any of the fresh particulars, direct that the plaintiff file and serve a fresh notice of motion ("the fresh notice of motion") within 21 days of receipt of the fresh particulars; further direct that the application the subject of the fresh notice of motion be heard by the trial judge at a date to be fixed.

Costs of the proceedings before the Registrar and of this appeal be reserved for the consideration of the trial judge.

DECISION

This is an appeal brought by the defendant, Mr. B.A. Santamaria, from an order made by the Registrar striking out certain paragraphs of the defendant's amended defence filed in defamation proceedings brought by the plaintiff, Mr. H.M.D. Combe.

2. The statement of claim, filed on 28 June 1984, alleges, in para. 2, that on or about 18 October 1983, the defendant caused to be published in the Territory and throughout Australia in the "Australian" newspaper of and concerning the plaintiff, a former national secretary of the Australian Labor Party, the following:

"The 'real' issues of the Hope Royal Commission

Politics
A personal viewpoint by B.A. Santamaria

WITH the conclusion of the first stage of the
Hope Royal Commission into Australia's security
services, it is important to distinguish between
what is essentially of issue and what is not.

It has little or nothing to do with whether
Ivanov was attempting to develop Combe into a
professional 'spy'. What matters is what the
highest rungs in the Soviet Union leadership -
in the person of Boris Ponomarev, alternate
member of the Soviet Politburo - were attempting
to develop in Australia.

What does the published evidence to date reveal,
granted that the unpublished evidence may modify
the published?

One section of the 'bugged' conversations
between Ivanov and Combe clearly indicates the
instructions sent to Ivanov to establish an
alleged Australia-Soviet trading agency came
directly from Ponomarev. The turnover of the
Australian project would run into hundreds of
millions of dollars annually.

As the experiences of parallel corporations in
France, Japan and Greece prove, its purpose
would have been to scrape off and launder very
large sums for Soviet political purposes in this
country.

A company called Commercial Bureau Ltd,
previously owned by Mr. L. Matheson, had over
some years conducted a lucrative trade with the
Soviet Union but had partly fallen out with
Soviet officialdom. In November last year,
Matheson commissioned Combe to advise him on the
political difficulties encountered by his
company.

In December, Combe went to the Soviet Union to
an alleged congress which, according to his own
evidence, was simply part of the Soviet
propaganda set-up.

At the commission hearings of August 24, Combe
testified that while in Moscow, he had
discussions with a Soviet official of the
International department of the Soviet Communist
Party, Kudinov.

Kudinov told him there had been a deterioration
in the relationship between the ALP and the
Soviet Communist Party, while at the same time
Matheson's Commercial Bureau Ltd had lost favor
because its Moscow representatives never got
involved in the affairs of the Australia-USSR
Friendship Society.

But Soviet officials stated that if Matheson was
disposed to correct this, 'that would predispose
them favourably towards Matheson and assist his
commercial market'.

On his return, Combe's own evidence went on, he
wrote a confidential report for Matheson. This
report was described by Mr McHugh, QC,
representing the Commonwealth Government, as
'possibly the most decisive document' in the
case.

ALP the 'bartered bride'

Combe's written report to Matheson recommended
that his Commercial Bureau Ltd should become
active in promoting links between Australia and
the Soviet Union and also in 'up-scaling'
(Combe's own word) relations between the Soviet
Communist Party and the ALP. Combe was to be
the main actor in this new policy and, according
to his own evidence, the financial cost for his
time for 'up-scaling' relationships between the
two parties was to be paid by Matheson's
company.

Still, according to his own evidence, while in
Moscow, Combe had already promised the Soviet
official Kudinov he would be prepared to play a
'facilitative' role in this project. Back in
Australia he made the suggestion to Ivanov that
he could act as a representative both for
Matheson's Commercial Bureau Ltd and as a Soviet
trade representative; that is, he would act for
both buyer and seller.

In his evidence to the commission, Matheson
stated that Combe suggested he should put
$50,000 to help finance an annual conference,
devoted to building relationships between the
two countries. Combe said his suggestion was
$10,000.

Matheson testified he had repudiated the entire
proposal as 'offensive and against the interests
of national security'. He feared his company
might in turn be used to channel funds from the
Soviet Union into Australia.

He said there were many instances of trading
companies with international connections being
used as channels for either legal or illegal
purposes. He also said he had been offended by
Combe's suggestion of an 'up-scaling' in
relations between the ALP and the Soviet
Communist Party because he could see no role for
himself other than a financial one.

'I had in mind I might be asked to make
available money for the Labor Party channelled
through my company'.

Combe, replying to Mr Charles, QC, agreed that,
if the Commercial Bureau Ltd had paid him money
to improve relationships between the Soviet
Communist Party and the ALP, some people might
have seen the ALP as a 'bartered bride' which, I
presume, means the ALP would be regarded as
'bought' in Soviet interests.

The critical question is whether this is
essentially what the Soviet Union was up to in
Australia. It is also whether any money had
already passed either into ALP funds or into
bodies like the 'peace movement' as has happened
overseas. If so, how was the money paid, or to
be paid?

That is what it is all about.

The rest is kid's stuff, fit for a John le Carre
novel."

3. The statement of claim then alleges that during October 1983 the defendant published in the Territory and throughout Australia in a television program called "Point of View" words and pictures of and concerning the plaintiff and to similar effect as set out in para. 2 of the statement of claim (para. 3). It is then alleged that during October 1983 the text in words and figures of the said telecasts throughout Australia referred to in para. 3 of the statement of claim was published in "News Weekly", the official publication of the National Civic Council, of which the defendant is and was at all material times President (para. 4). The plaintiff further alleges that the words and figures referred to in para. 2 and the words and pictures referred to in para. 3 and the words and figures referred to in para. 4 in their natural and ordinary meaning were defamatory of the plaintiff (para. 5). The following particulars of defamatory meanings alleged are then given:

"(i) That the plaintiff was knowingly concerned

in a scheme for laundering money for Soviet
Political purposes in Australia.

(ii) That the plaintiff was knowingly concerned

in a scheme which would damage Australia's
interests and security for financial gain.

(iii) That the plaintiff was knowingly concerned

in a scheme to channel soviet funds into
the Australian Labor Party to influence
that Party in the Soviet interest.

(iv) That the plaintiff had or desired to pass

Soviet funds into the Australian Labor
Party and/or bodies like the peace movement
thereby compromising them in the Soviet
interest.

(v) That the plaintiff lacked business ethics.

(vi) That the plaintiff lacked integrity and was

prepared to act deceptively and
clandestinely in the interests of the
Soviet Government and contrary to the
national interest of Australia.

(vii) That the plaintiff placed the interests of

the Soviet Union and/or his own financial
interests above the national interest and
security of Australia."

4. By paras. 4(a), 5(a), 8(a) and 9(a) of his amended defence, the defendant has pleaded a defence, amongst others, that the publication complained in paras.2, 3 and 4 of the statement of claim "was published upon an occasion of qualified privilege". The plaintiff has sought and been provided with further and better particulars of the defence as follows:

"(i) Identify the (i) The defendant as a
occasion of journalist and political
qualified privilege commentator had a duty or
alleged and the alternatively an interest
grounds therefor. in the provision to the
public of the information
and views contained in the
matter complained of which
they had an interest in
receiving. The matter
complained of concerned
matters of public
interest, namely,
(a) testimony given by
the plaintiff and Mr
L Matheson, to the
Royal Commission into
Australia's Security
and Intelligence
Agencies as to their
respective dealings
with each other and
representatives of
the U.S.S.R.
concerning relations
between Australia and
the U.S.S.R.;
(b) The objectives of
those representatives
of the U.S.S.R. in
conducting the
dealings referred to
in (a) above;
(c) Relationships between
the Soviet Communist
Party and the
Australian Labor
Party;
(d) The relationship
between the plaintiff
and Mr Ivanov as
revealed in the
evidence presented to
the Royal Commission
into Australia's
Security and
Intelligence
Agencies.
(ii) Set out as (ii) (a) The defendant had the
particularly as you information contained
are able the facts, in the matter
matters and complained of complained of.
circumstances upon The matter complained of
which the defendant was published in the
relies to establish course of giving such
that the occasion information to those
in question was of to whom it was
qualified privilege published on the
as alleged. subjects of public
interest noted above
and in which they had
or could reasonably
be expected to have
had an interest.
(b) The program on which
and the column in
which publication
took place was and
was known to be a
forum for the
expression of the
plaintiff's views on
Australian domestic
politics and foreign
relations.
(c) The publications took
place shortly after
the occurrence of
events which they
described which were
subjects of topical
and current interest.
(d) The defendant in
publishing the matter
complained of acted
reasonably and
without negligence."

5. Before the Registrar, the plaintiff contended that the plea of qualified privilege should be struck out pursuant to 0.23 r.28. Under that rule, a pleading may be struck out if it "may tend to prejudice, embarrass, or delay the fair trial of the action." The plaintiff claimed that the plea of qualified privilege was bad in law since the particulars given were not capable of constituting that defence. Such a claim - in the nature of a demurrer to the plea - may have been more appropriately raised in an application brought to strike out the pleading under 0.29 r.4 on the ground that it disclosed no reasonable answer to the cause of action asserted. At all events, the Registrar, approaching the application on this basis, was of the opinion that the particulars given could not possibly attract the privilege asserted by the defendant and ordered that the defence be struck out; liberty was reserved to the defendant to file a further amended defence. Acknowledging that the categories of privilege was not yet closed, the Registrar nonetheless held that the present case could not possibly attract privilege. He said (at pp.8-9):

". . . the defendant, to succeed in his defence,
must show that special circumstances existed
which created a duty or interest in him to
publish the subject article in the media. Such
special circumstances were shown in Adam v. Ward
(1917) AC 309 and Webb v. Times Publishing Co.
(1960) 2 QB 535. This latter case not having
created a separate category of qualified
privilege known as 'fair information on a matter
of public interest' but rather being an
exemplification of the application of the
general rule (see Hook v. John Fairfaix and Sons
Ltd. (1982) 42 ACTR 17 at 19). In my view the
defence as pleaded and particularised does not
raise any facts which could possibly be regarded
as special circumstances such as to have created
a duty or interest in the defendant to
communicate the article in question to the
public at large, nor a duty or interest in the
public, greater than the general public
interest, to receive it. Apart from some
recounting of evidence before the Royal
Commission, the article merely contains the
defendant's views and comments on the subject
matter dealt with in that evidence. There is
nothing raised in the particulars which suggests
that the information contained in the article
was of such a nature that it was essential that
it be communicated to the Australian public at
large through the media. The information
contained in the article does not even come
close in nature to the information communicated
in those many cases where the defence of
qualified privilege has been made out in respect
of publication in the media. It is a case which
'must plainly be on the wrong side of any line
you can possibly draw' (Wood v. Wood (1947)
P.103 at 106) and it is clear, in my opinion,
that the defence as pleaded is not available to
the defendant."

6. Upon opening the appeal, counsel for the defendant pointed out that it had been assumed in the proceedings before the Registrar that the three publications sued on were the same or at least involved the same considerations for present purposes. The assumption was, I think, correct. If there are minor differences in the terms and context of the respective publications, they would not appear to bear upon the availability, in point of law, of a plea of qualified privilege.

7. More important, counsel for the defendant informed the Court that his client proposed to accept the liberty to amend reserved to him by the Registrar and to furnish fresh particulars of his defence of qualified privilege. It is apparent from counsel's oral outline of the particulars now proposed to be given that they depart substantially from the earlier particulars. It follows that, save for the question of costs, the actual decision of the Registrar is of academic interest only, although the reasons for his decision may well continue to be significant.

8. With all respect to the careful reasoning of the Registrar, I think it was inappropriate that the application to strike out a defence of qualified privilege be dealt with at that early stage of the principal proceedings. There will always be real difficulties in attempting to strike out such a defence on a demurrer basis in advance of the trial. Under the common law system of pleading, a party has to allege facts from which, if they and no other facts were proved at the trial, the law will deduce an answer to a cause of action. But this is a different question from that which arises under the modern system of pleading upon an application to strike out a plea on the ground that it discloses no reasonable answer to the claim made. A demurrer is not allowed (0.29 r. 1) and the question is whether it would be open to the defendant upon the pleadings to prove facts at the trial which would constitute an answer to the cause of action (see Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt [1968] HCA 74; (1970) 122 CLR 556, per Lord Diplock at p 631). Since the defendant need only give limited particulars of a plea of qualified privilege (see Sims v. Wran (1984) 1 NSWLR 317 at pp 326-7), it is possible that not all of the matters upon which the defendant will seek to rely at the trial in support of his defence will have been revealed in the particulars furnished. It was thus not open to the Registrar to deal with the matter on the footing that the particulars represented an exhaustive statement of the circumstances to be relied upon to establish privilege.

9. The difficulty confronting a court in endeavouring to determine the availability of a defence of qualified privilege in advance of the trial has been recognised in the authorities. In Clines v. Australian Consolidated Press Limited (No. 3) (1966) 67 SR (NSW) 364, Jacobs J.A. said (at p 383):

"The substantial question which has been argued
on the hearing of this demurrer to this plea has
been whether on the facts disclosed in the
pleadings a defence in terms of the section is
open. I do not think that this question is
capable of being determined on demurrer. I
think the pleading in form is good and, that
being so, the question whether the publication
was 'for the public good', although it is a
question of law to be determined on the facts
found, if necessary, by the jury, nevertheless
is a question which must be determined by the
judge at the trial and is not capable of being
determined on a demurrer unless it could be said
that under no conceivable circumstances could it
be established that the defamatory matter
alleged in the declaration was published for the
public good. I do not say that such a situation
is impossible but I do say that it would be very
rare indeed and I do not think that the present
is such a situation."

10. Although Jacobs J.A. was there dealing with a pleading under the old system, his observations are equally apposite to a defence of qualified privilege sought to be raised under the modern system of pleading. His approach was followed, more recently, by the Court of Appeal of the Supreme Court of New South Wales in Hanrahan v. Bluett (Hope J.A. Mahoney, J.A and Priestley J.A. unreported, 11 June 1985, per Hope J.A. at p 11). I respectfully agree.

11. The ordinary procedure in these matters should have been followed here. It should have been left to the trial judge to determine whether, on the facts, a defence of qualified privilege has been established. Whether this question should now be determined as a preliminary point of law on agreed facts or should be resolved at the trial itself, must be left to the discretion of the trial judge.

12. To avoid the possibility of any argument that there is an issue estoppel arising from the Registrar's orders, I propose to order that the appeal be allowed, the Registrar's orders set aside and that the hearing of the plaintiff's application to strike out the plea of qualified privilege dealt with by the Registrar now take place before the trial judge. Costs of all proceedings to date will be reserved to the discretion of the trial judge.

13. It is hardly necessary to add that, in allowing the appeal and setting aside the Registrar's orders for what are no more than adjectival reasons, I am not to be taken to be indicating any view on the substantive question whether privilege could be attracted under the existing or the proposed particulars.

I propose to make the following orders:

1. That the appeal be allowed.

2. That the orders made by the Registrar on 28
July 1986, including the order as to costs, be
set aside.

3. That the application the subject of the
plaintiff's notice of motion filed on 18
February 1986 be stood over to a date to be
fixed before the trial Judge.

4. Direct that the defendant file and serve
within 21 days any fresh particulars ("the
fresh particulars") of the defence of
qualified privilege pleaded in paras. 4(a),
5(a), 8(a) and 9(a) of his amended defence
("the defences of qualified privilege").

5. In the event that the plaintiff desires to
apply to strike out any of the defences of
qualified privilege as particularised in any
of the fresh particulars, direct that the
plaintiff file and serve a fresh notice of
motion ("the fresh notice of motion") within
21 days of receipt of the fresh particulars;
further direct that the application the
subject of the fresh notice of motion be heard
by the trial judge at a date to be fixed.

6. Costs of the proceedings before the Registrar
and of this appeal be reserved for the
consideration of the trial judge.