Michael John Moore v Twt Limited [1991] ACTSC 51 (19 July 1991)

SUPREME COURT OF THE ACT

MICHAEL JOHN MOORE v. TWT LIMITED
S.C. No. 709 of 1989
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Defamation - Amended Defence - Need to formulate precise terms of proposed amendment - Endorsement required - Contextual Imputations - Whether sufficient in law.

Constitution, s.92

Australian Capital Territory (Self Government) Act 1985, s.69

Defamation Act 1974 (NSW), s.16

Australian Capital Territory Suprme Court Act 1933, s.44

Rules of the Supreme Court of the Australian Capital Territory O.32 rr.9, 12, O.33 r.1(2)

Derrick v Williams (1939) 2 All ER 559

James v Cowan [1929] HCA 47; (1930) 43 CLR 386

Polly Peck (Holdings) PLC and Ors v Trelford and Ors (1986) 1 QB 1000

Kelly v Special Broadcasting Service and Anor (1990) VR 51

Jackson v John Fairfax and Sons Ltd (1981) 1 NSWLR 36

HEARING

CANBERRA
19:7:1991

Counsel for the Plaintiff: Mr B. Salmon

Instructing solicitors: Messrs Macphillamy Cummins and Gibson

Counsel for the Defendant: Mr Reynolds

Instructing solicitors: Messrs Blake Dawson Waldron

ORDER

Refuse relief relating to invalid filing of proposed amended defence.

Defendant pay plaintiff's costs of and incidental to Motion.

Direct that action be listed before Master for directions on 9 August 1991.

If defendant proposes on 9 August 1991 to seek leave to file further amended defence, draft of document proposed to be filed to be settled by counsel and be served upon the plaintiff's solicitors by 5.00pm on 2 August 1991.

DECISION

This is an application relating to an amended defence in an action for damages for defamation.

2. The Statement of Claim was dated 20 December 1989. It alleged that the defendant, the proprietor of a television station, transmitted on 24 October 1989, to viewers in the ACT and New South Wales, a news program which dealt with the resignation of the plaintiff from the Resident's Rally, a political party in the Legislative Assembly of the Australian Capital Territory.

3. After reporting the resignation, the program proceeded with an image of the plaintiff displayed on the screen while the reporter's voice spoke the following text:-
"Mr Moore's exit ends months of tensions in the Party.

Last week police were called in after Mr Collaery's safe
was tampered with and late last night locks in the Rally
Offices were changed. The feeling in the Rally Office
today was one of relief."

4. After some more material relating to conflict between the plaintiff and Mr Collaery, who was the leader of the Resident's Rally in the Assembly, the program continued with a statement by the reporter that the plaintiff denied betraying the party and again displayed an image of the plaintiff with the plaintiff saying:-

"If people wanted to go through recriminations and try and
chase where those leaks came from, fine, but as far as I'm
concerned I've left all that behind."

5. The Statement of Claim then set out that the published material in its natural and ordinary meaning meant, and was understood to mean:-

"(a) that the plaintiff was prepared to act dishonestly to
achieve his objects;
(b) that the plaintiff had committed the crime of
attempted burglary;
(c) that the plaintiff had for a dishonest purpose
attempted to break into a safe in the control of
Mr Collaery;
(d) that the plaintiff was a person who could not be
trusted;"

6. The original defence was filed on 20 April 1990. Formally, it put in issue all the allegations of the Statement of Claim. It further put in issue that the matter published, in any of the meanings alleged, was, or was understood to be, or was capable of being, defamatory of the plaintiff. It then raised allegations of qualified privilege in respect of the publications in ACT and New South Wales.

7. The reply was dated 21 May 1990. It put in issue the allegations relating to qualified privilege and alleged malice and unreasonable publication.

8. The processes of discovery and interrogatories then took place but were not complete when a listing conference was requested. That took place on 14 February 1991. A listing hearing was then appointed for 30 April 1990. Solicitors for each party attended. The Court record of that listing hearing, and a facsimile letter dated 29 April, show that there was discussion about a possible amendment of the defence, relating to constitutional issues. Nevertheless, a hearing date was allocated for 25 November 1991 with the estimate of the length of hearing being 10 days. A further direction was given that an amended defence or application for leave to file amended defence be made on or before 30 May 1991, with consequential directions for other pleadings and supplementary discovery.

9. On 29 May 1991, the defendant filed a Notice of Motion seeking leave to file an amended defence within seven days. The Notice was returnable on 11 June 1991, so presumably what was meant was within seven days from that date.

10. The form of the proposed amendment was not referred to in the Notice of Motion, nor was any affidavit or letter adumbrating it supplied either to the Court or to the plaintiff's solicitors, although it had twice been requested by the plaintiff's solicitors, by letters dated 30 April and 8 May, and the letter serving the Notice of Motion stated that an affidavit in support would be served shortly.

11. On the return day the Notice of Motion was, by consent, adjourned to 17 June 1991.

12. On 17 June 1991, by consent, a series of orders were made including:-
"1. Amended Defence to be filed by 28 June 1991." It is clear from the evidence that the form of the proposed amendment had still not been specified.

13. On 28 June 1991, it appears without any further communication with the plaintiff's solicitors, the defendant's solicitors lodged with the Registry a document which purported to be an amended defence. A copy was delivered to the plaintiff's solicitors on the same day.

14. The Registry, however, did not proceed to file the document, but returned it to the defendant's solicitors, apparently because it did not bear the endorsement required by O.32 r.9.

15. Unaware of that defect at the time, the plaintiff's solicitors protested on 1 July 1991 that they had not had an opportunity to consider the proposed amendment before the filing and that the proposed amendment went beyond constitutional issues and raised new pleas of justification. The defendant's solicitors refused to withdraw it.

16. This Notice of Motion was filed on 5 July 1991.

17. It seeks orders that the purported amendment lodged on 28 June 1991 be treated as a nullity or, in the alternative, that paragraph 7 of the purported amendment be struck out. Paragraph 7 contained the new plea of justification, which calls for more detailed consideration below.

18. I do not need to resolve any such dispute as might exist between the solicitors who appeared on 17 June about what was understood to be the ambit of the amendment that might be encompassed by the consent order then made.

19. The circumstances so far outlined afford a telling illustration of the need to formulate, and state in writing, the precise terms of any amendment sought to be made to a pleading. Otherwise, as here, when it is formulated, it may well be found to be objectionable.

20. See, for example, Derrick v Williams (1939) 2 All ER 559 at 562 per Sir Wilfred Greene, MR.

21. It is not to the point to say that drafting of the amended defence was only completed at 4.00pm on 28 June. That was a difficulty which the defendant's advisers had created for themselves.

22. In fact, since the document lodged was not filed at the Registry because it did not comply with the Rules, the consent order has not been complied with, and as the pleadings in the action stand at the moment, the defence has not been amended. That defect could easily be overcome if it were the only fault in the document. But it is not.

23. The defendant did not apply at the hearing for leave now to file that document. However, pursuant to O.33 r.1(2), I treat the action as now being before me for directions, and as having power to grant that leave. The principle that must guide me in considering whether to grant it is set out in O.32 r.12, by which I am required to make such amendments as are necessary to determine the real questions or issues depending on the proceedings.

24. It follows that I reject the submission of counsel for the defendant that I must permit the proposed amendments to stand unless they are clearly untenable. It is the defendant who, in effect, seeks the Court's indulgence, and the defendant must show that the proposed amendments are necessary to enable the real issues to be determined.

25. Paragraphs 8 and 9 of the proposed amended defence raise the so called constitutional issues.

26. They allege that the matter complained of was broadcast among the States or between the Australian Capital Territory and the States and that therefore the broadcasts were "absolutely free" by virtue of s.92 of the Constitution and s.69 of the Australian Capital Territory (Self Government) Act 1985 respectively.

27. I have considered whether they should be allowed to remain. On their face they do not appear to me to allege sufficient facts to justify the proposed conclusion and the proposed conclusion itself is sufficiently startling to make me wonder whether it is not so obviously untenable that it should be struck out. I am reminded of my favourite text on s.92 of the Constitution, the judgment of Rich J. in James v Cowan [1929] HCA 47; (1930) 43 CLR 386 at 422, 423, where he commented that,

"However much reliance in and before 1900 may have been
placed upon the eighth commandment, sec. 92 can scarcely
have been framed to put an absconding thief at his legal
ease so long as his destination was over the boundary."

28. I venture to suspect that neither were the relevant statutory provisions designed to destroy the legal consequences that usually follow when one citizen defames another, if the culprit can demonstrate that the defamation was so widely spread that it traversed a border into another law district.

29. But counsel for the plaintiff expressly disclaimed any concern about those two paragraphs, and I did not raise my doubts about it with counsel for the defendant, and, on balance, I would not think it right at this stage to refuse leave to add the matter when he has not yet been heard in argument about it.

30. The real matter of contention is the plea, or rather the pleas, of justification set out in paragraph 7. That attempts to deal, in one paragraph, with defences relating to publications in the ACT and in New South Wales. It is not so much a rolled up plea as a spread out plea. Part of it, headed (B) in each section, was mercifully abandoned at the hearing of the Motion.

31. So far as concerns the publication in the Territory, it alleges, in summary, that to the extent that it might be found to be defamatory of the plaintiff, it meant that

"the plaintiff was reasonably suspected of having had a
connection with the leaking of confidential documents which
had been improperly obtained from a party member's safe,"

and that that meaning was true and that it was for the public benefit that it should be published.

32. So far as concerns the publication in New South Wales, the plea alleges that to the extent that it be found to be defamatory of the plaintiff, that same imputation (called "the contextual imputation") was published contextually to each of the imputations alleged by the plaintiff in paragraph 4 of the Statement of Claim, that the contextual imputation was true and that it was for the public benefit that it be published; that it was a matter of substantial truth and related to matters of public interest and was published contextually to the plaintiff's imputations which themselves related to matters of public interest; that it was a matter of substantial truth and published under qualified privilege and published contextually to the plaintiff's imputations (which related to matters of public interest); that it was a matter of substantial truth and also related to matters of public interest and was published contextually to the plaintiff's imputations (which were published under qualified privilege); and that it was a matter of substantial truth, published under qualified privilege, and published contextually to the plaintiff's imputations (which were published under qualified privilege), and that by reason of the substantial truth of the contextual imputation, such of the plaintiff's imputations as might be found to arise did not further injure the plaintiff's reputation.

33. The plea, so far as it relates to the ACT publication, and the first part of it, in the same terms, so far as it relates to the New South Wales publication, is said to arise under the common law, as expounded in Polly Peck (Holdings) PLC and Ors v Trelford and Ors (1986) 1 QB 1000. The second part of the plea relating to the NSW publication appears to be founded upon s.16 of the Defamation Act 1974 (NSW).

34. In its present form all three matters are alleged in the one grammatical sentence covering two and a half pages. Such is its Byzantine complexity that I would not allow it to be filed in that form. It is obviously embarrassing to plead to, and the issues raised would take too long to elucidate.

35. But a number of other objections were raised by counsel for the plaintiff.

36. First it was said that a late plea of justification should not be allowed. I think that there may just be time enough, all other things being equal, to allow a proper amendment even at this stage.

37. Next it is said that there are no particulars, for example of who is alleged to have held the reasonable suspicion. That appeared to me during argument to be a well based objection. In answer, it was put by counsel that what was meant was that the facts and circumstances were such as to make the suspicion justifiable. If that be so, then I hold that the pleading should say so, and do it with the full particulars required of those facts and circumstances.

38. Next it is submitted that the contextual imputation pleaded must have a sting which is in law sufficient, that is, capable of having the effect of overcoming the imputation proved by the plaintiff. See Kelly v Special Broadcasting Service and Anor (1990) VR 51.

39. It would be wrong to permit an amendment which would be clearly demurrable. However, I am not persuaded that, properly pleaded, the suggested contextual implications would be clearly unsustainable as a matter of defence.

40. I think that it would be better for the trial judge to decide on the cogent arguments submitted to me, after he has seen the offending program and heard the evidence, as I have not. To me, as at present advised, it appears that at law it is capable of bearing the meaning the defendant proposes to allege.

41. On applying to the proposed contextual imputation the tests set out by Hunt J. in Jackson v John Fairfax and Sons Ltd (1981) 1 NSWLR 36, I would make the following comments:-

1. It clearly differs in substance from imputations (b) and
(c) alleged by the plaintiff. It is arguable, but by no
means so clear, that it differs from (a) or (d).
2. It was conveyed at the same time as, and in addition to,
the imputations pleaded by the plaintiff.
3. It does not identify what is the precise act or condition
which is asserted of or attributed to the plaintiff, both
by the plaintiff's own imputations and by the defendant's
contextual implications. It clearly suffers from the
inadequacies of pleading in the passive voice adverted to
by Hunt J.

42. I therefore am not prepared to dispense with compliance with the Rules, or to make an order pursuant to s.44 of the Australian Capital Territory Supreme Court Act 1933 declaring that the filing of the document was valid notwithstanding its irregularity. In my opinion, to allow the amended defence to remain on the file, or cause it to be deemed to have been properly filed, would cause substantial injustice to the plaintiff who would be expected then to plead to it, and that injustice could not be remedied by any order that has been suggested, or which suggests itself, to me.

43. I think that that finding achieves the same objective as the proposed order 1 sought in the Notice of Motion, although I do not see that I have power to make a formal order in those terms.

44. I order the defendant to pay the plaintiff's costs of and incidental to the Motion. I do not think that the circumstances are such as to warrant any basis of costs other than as between party and party.

45. I direct that the action be listed for directions before me on 9 August 1991.

46. If the defendant proposes then to seek leave to file an amended defence, I direct that a draft of the document proposed to be filed be settled by counsel and be served upon the plaintiff's solicitors by 5.00pm on 2 August 1991.

47. Both parties should be prepared on 9 August 1991, to make submissions about all other directions that might be needed to ensure that the matter will be ready for expeditious hearing and determination at the time fixed for hearing.