Michael John Moore v Twt Limited [1991] ACTSC 67 (20 August 1991)

SUPREME COURT OF THE ACT

MICHAEL JOHN MOORE v. TWT LIMITED
S.C. No. 709 of 1989
Practice and Procedure - Defamation

COURT

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

CATCHWORDS

Practice and Procedure - Amendment - Pleading - Settled by counsel - Endorsement reqired - Whether amendment Necessary - Evidence required - Particulars required - Matter arising under Constitution or involving its interpretation - Notices to Attorneys General - Separate Hearing - Hearing specially fixed - Need for Adjournment - Prejudice to plaintiff - No proper Compensation

Defamation - Amended Defence - Justification - Duty of Counsel - Conduct of Defendant - Delay - Diligence in enquiries - Evidence required - Contextual Implications - Need to outweigh Plaintiff's innuendoes

Judiciary Act 1903 S.78B

Australian Capital Territory Supreme Court Act 1933 S.43

Rules of the Supreme Court of the Australian Capital Territory O. 24 r 4A; O. 32 r 1

General Steel Industries v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129

Horton v Jones (No. 2) 1939 39 SR (NSW) 305 at 309, 310

G.L. Baker v Medway Building and Supplies Ltd (1958) 3 All ER 540

Tildesley v Harper (1878) 10 Ch D 393

Atkinson v Fitzwalter (1987) 1 WLR 201

Associated Leisure Ltd (Phonographic Equipment Co. Ltd) v Associated Newspapers Ltd (1970) 2 QB 450 at 456

Jackson v John Fairfax and Sons Ltd (1981) 1 NSWLR 36 at 39

Jones v Skelton (1963) 63 SR (NSW) 644, at p 656; 80 WN 1061 at p 1070

HEARING

CANBERRA
20:8:1991

ORDER

The application be dismissed.

The defendant pay the plaintiff's costs of and incidental to the application.

DECISION

This is an application for leave to amend a defence in a defamation action.

2. An attempt was made to file a document raising the same or similar issues, which was not successful, for the reasons set out in my decision of 19 July 1991. Those reasons set out the nature of the defamatory matter sued upon, and the general nature of the proposed amended defence, so that I do not need to repeat those matters here.

3. The application is made in accordance with directions that I made on 19 July 1991. Among those directions was one that the draft of the document proposed to be filed be settled by counsel. The draft document appended to the present Notice of Motion does not bear the endorsement required by O. 23 r 4A. However, I accept the assurance of counsel for the defendant that it was settled by him, and that if leave is granted the document filed will bear the appropriate endorsement.

4. The application was not supported by any evidence. Counsel for the defendant submitted that when an application for an amendment is made it must be granted unless the opponent can demonstrate either that the claim or defence put forward is obviously untenable or that the opponent would suffer some detriment that could not be met by some appropriate term or condition, such as an order for costs. It was put that the opponent to the granting of leave must make out the same kind of point about the proposed amendment as would be needed on an application to strike it out, as outlined, for example, by Barwick C.J. in General Steel Industries v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129. In support of that proposition he relied upon the remarks of Jordan C.J. in Horton v Jones and Others (No.2) (1939) 39 SR (NSW) 305 at 309, 310.

5. The approach outlined by Jordan C.J. in that case has indeed been followed and applied in countless cases since then. But I cannot express too strongly my dissent from the proposition that what the Chief Justice there laid down is authority for the contention put forward by counsel for the defendant.

6. Both S. 43 of the Australian Capital Territory Supreme Court Act 1933 and O. 32 r 1 of the Rules require all such amendments to be made as are necessary for determining the real question in controversy between the parties.

7. That is not the same thing as saying that all a party need do is seek an amendment, without any explanation, and the onus is forthwith cast upon the other party to demonstrate either a "strike out" point or ineradicable hardship.

8. It is the applicant for amendment who seeks the Court's indulgence for not having complied with the Rules, and what must first be shown is the need ("necessary" is the word used in the legislation) for the amendment to be made in order that the real questions in controversy between the parties be determined.

9. There will be many cases where that necessity will be apparent from the very terms of the pleadings being deal with. G.L. Baker Ltd v Medway Building and Supplies Ltd (1958) 3 All ER 540 is an example. There is a useful review of a number of the English authorities in the judgment of Jenkins L.J. in that case.

10. In other cases evidence will be needed. Perhaps an illustration of that is afforded by the remarks of Bramwell L.J. in Tildesley v Harper (1878) 10 Ch D 393, which is a locus classicus in what he calls "this humble branch of learning". They are cited by Jenkins L.J. at p 549 of his judgment, and include the comment, "I confess that if the present case had come before me I should have had some doubt whether the defendant had made a bona fide mistake, as the mistake is so very obvious. I should probably have required some affidavit or statement by the solicitor to show that the slip in the pleading was a bona fide one, and if satisfied on that point, I should not have refused leave to amend."

11. Counsel for the plaintiff submitted that one circumstance where some evidence will normally be required is when a defendant in a defamation case seeks at a late stage to amend the defence to include a plea of justification. He relied upon the following passage from the judgment of Lord Denning MR in Associated Leisure Ltd (Phonographic Equipment Co. Ltd) v Associated Newspapers Ltd (1970) 2 QB 450 at 456.
"But when the defendant seeks to plead justification

at a late stage, his conduct will be closely inquired into.
The court will expect him to have shown due
diligence in making his inquiries and investigations.
The court may well refuse (his) application if he has
been guilty of delay or not made proper inquiries earlier."

12. I would comment that I do not read Lord Denning's reference to "at a late stage" to require that the trial must be impending before the defendant's conduct will be inquired into. It is late enough to bring this consideration into play that the application to amend is made months after advice on evidence has been said to have been provided, discovery and inspection has been had, interrogatories have been administered and answered and the case has been specially fixed for the hearing.

13. Lord Denning in that case had evidence before him, the substance of which is set out at page 456 of the report cited, which was sufficient to satisfy him that in the circumstances the amendment there sought was proper. On this application the defendant has chosen to tell me nothing.

14. The history of the pleadings in this present case, and of the unsuccessful previous attempt to amend the defence, is set out in my reasons for the decisions of 19 July 1991.

15. It is significant to me that the only amendment discussed at the listing hearing in April 1991 related to the so called constitutional issues. At that listing hearing the case had been fixed for hearing on 25 November 1991, and allocated ten hearing days. That allocation, and the estimate of time required for the case, was based upon the issues as they then had been pleaded, and the documents discovered and interrogatories administered relating to those issues.

16. The Court record indicates that the Deputy Registrar was advised at that listing hearing that advice on evidence had by then been obtained from Counsel.

17. It was not till 28 June 1991 that the attempt was made to file the additional defences of justification, without any discussion with the plaintiff's advisers. In view of the lapse of time and the absence of any explanation for the failure to put forward the proposed defences at any earlier time, it is to my mind legitimate to ask upon what basis it is contended that the addition of the new matter is necessary for determining the real issues.

18. If, as counsel now assures the Court, he has in his instructions sufficient material to warrant his putting forward the new pleas of justification, how was it that he or his instructing solicitors did not have it at the time of the listing hearing, when he had already advised on evidence, or, if they did have it then, why was not the nature of the proposed amendment communicated to the plaintiff at the earliest opportunity? The type of evidentiary material that might be relevant on such a question is illustrated by the contents of the affidavit sworn by the defendant's solicitors in support of the application in Atkinson v Fitzwalter (1987) 1 WLR 201, set out and discussed by May L.J. at 204.

19. The next complaint that counsel for the plaintiff makes is that the proposed amendment is defective for want of the necessary particulars.

20. Counsel for the defendant freely conceded that he would be required to give further and better particulars, but submitted that their absence from the pleading was not a reason why leave should be refused.

21. In many cases, that submission would be perfectly acceptable.

22. But this is a case where the date for hearing has for some months been fixed. A substantial block of judicial time has been allocated to it. Judicial time, I may comment, is not an unlimited resource, freely available to be used by litigants as they wish, especially in this Court. There are the interests of other litigants, especially the Crown and those awaiting trial on criminal charges, to be considered. Unless it is clear that the proposed amendment will not unduly increase the estimated time allotted for the hearing of the case then the hearing date will have to be vacated.

23. It is clear from the pleadings that the plaintiff is a politician. He has brought these proceedings to vindicate his good name, and his reliability as a member of a political party. He has obtained a date for hearing. If that date for hearing is vacated his opportunity to do so must be postponed for a considerable period of time.

24. It is conceded that the particulars of the proposed amended defences would have an effect upon the witnesses who could be called at the trial. It seems obvious to me that not only further particulars, but further discovery and further interrogatories might well be required if the amendments were allowed.

25. It seems to me, therefore that before I grant this application I should be persuaded that all those matters could be attended to without endangering the plaintiff's entitlement to the special fixture. But there is no material placed before me to persuade me to that point of view.

26. I am aware that if the defendant fails to make good the proposed amended pleas of justification the plaintiff may recover increased damages (Cf. per May L.J. in Atkinson v Fitzwalter supra at 206 C-D), but that does not, in this case, address the problem of delay so far as this particular plaintiff is concerned.

27. It is not necessary for me to decide whether, as counsel for the defendant submitted, the rules about pleading in defamation cases in the Rules of the Supreme Court of New South Wales Pt. 67 r 18 (5) apply in this Court in the absence of any specific rule dealing with the specific subject matter in the Rules of this Court. I doubt it. But the point is that, whether the particulars be included in the pleading, or be supplied upon request or after a contested interlocutory application, it is not possible now to say that allowing the proposed amendment will not cause the plaintiff to lose the benefit of the special fixture that he has obtained.

28. On the basis of the information before me it is simply not possible to decide whether, and to what extent, the particulars that might be requested and supplied would affect the number of witnesses to be called at the trial or the length of the hearing.

29. I am not persuaded, therefore, that any order for costs, or any other order, would properly compensate him for the loss of that opportunity to clear his name at the earliest time that the Court has been able to allot to him.

30. During the discussion about whether the proposed amendments had been settled by counsel Mr Reynolds made the following comment,

"Well, I can assure you, Master, that I am aware of
my ethical responsibilities before I plead one of these
contextuals in their form and that I have satisfied
myself that I have sufficient instructions to be able to
plead them. Of course if I did not, it would probably be
a minor form of misconduct, so I can assure you of that."

31. I do not know of any basis on which it could be suggested that pleading justification without sufficient instructions would only be a "minor" form of misconduct by counsel.

32. But its gravity would certainly be related to the gravity of the allegation made against the plaintiff in the pleading. For example, in the Associated Leisure case referred to above, it was obviously proper to make very extensive enquiries before pleading a connection with the Mafia about an applicant for a licence under the Gaming Acts.

33. The contextual implications sought to be raised here relate to a reasonable suspicion by members of his own party that the plaintiff was disloyal, had leaked confidential information or had leaked confidential information from a fellow party member's safe.

34. That is not as serious as an allegation of fraud, or an allegation of connections with the Mafia.

35. In fact, I am inclined to treat counsel's comment as almost an admission that it is not really a very serious thing to say about a politician, so that the obligation on counsel to have instructions is not all that grave.

36. If that is so, then it may be doubted whether the contextual implications are sufficiently serious to overtop the imputations pleaded by the plaintiff, namely that he was prepared to act dishonestly, that he had committed the crime of burglary, that he had, for a dishonest purpose, attempted to break into a safe in the control of Mr Collaery, and that he was a person who could not be trusted.

37. After the argument in the previous application, for the reasons I set out, I was not persuaded that the proposed contextual implications could not possibly afford a defence.

38. That was not a final determination, and what I held on that application does not give rise to any issue estoppel, and I consider myself at liberty to consider the question afresh.

39. I respectfully adopt as one of the characteristics of the proposed defence what was said by Hunt J. in Jackson v John Fairfax and Sons Ltd (1981) 1 NSWLR 36 at 39.

"The defence of contextual truth accepts that the
matter complained of conveys the imputation pleaded by
the plaintiff and that no other defence has been
established in relation to that imputation; it asserts
that the imputation pleaded by the defendant is also
conveyed by the matter complained of (such imputation
being called the contextual imputation); the defence then
asserts that, even though the plaintiff's imputation is
otherwise indefensible, such is the effect of the
substantial truth of the defendant's contextual
imputation upon the plaintiff's reputation that the
publication of the imputation of which he complains did
not further injure his reputation.
An easy example is the publication which describes
the plaintiff (falsely) with having been charged with a
criminal offence and which, by reason of additional
material, also imputes (truly) that he is guilty of such
offence. If the plaintiff sued and complained only of
the imputation conveyed by the assertion that he had been
charged with that offence, it would be open to the
defendant, in accordance with s 16, to plead the
contextual imputation that the plaintiff was in fact
guilty of such an offence and that such contextual
imputation was substantially true. Assuming that the
contextual imputation also related to a matter of public
interest or was published under qualified privilege, the
defendant would succeed in the action complaining of the
publication of the imputation pleaded by the plaintiff
(and based upon the untrue assertion that he had been
charged) if the jury were satisfied that, by reason of
the substantial truth of the defendant's contextual
imputation, the untrue imputation pleaded by the
plaintiff did not further injure his reputation.
In coming to that decision, the jury would be required to
weigh or to measure the relative worth or value of the
several imputations pleaded by both the plaintiff and the
defendant. There is little doubt that in this example
the jury would find that, by reason of the substantial
truth of the contextual imputation pleaded by the
defendant, that pleaded by the plaintiff did not further
injure his reputation.
At the other end of the scale is the publication
which describes the plaintiff (falsely) as a blackmailer
and (truly) as having unlawfully remained in the country
on an expired visa. If the plaintiff sued and complained
only of the assertion that he was a blackmailer, a
defence of contextual truth based upon the imputation
that the plaintiff was an illegal immigrant would be
doomed to failure. It would, in my view, be open to the
trial judge in such circumstances to take such a defence
away from the jury because there would be no rational
basis upon which the jury could find in favour of the
defendant. It is always for the judge to rule in regard
to any particular issue whether there is a case to go to
the jury: Jones v Skelton (1963) 63 SR (NSW) 644, at
p 656; 80 WN 1061, at p 1070.
In between these two extremes there must, of course,
be many degrees. If the publication described the
plaintiff (falsely) as a share swindler and (truly) as a
rapist, the jury could well have considerable difficulty
in weighing or measuring the relative worth or value of
the two imputations conveyed. In those circumstances, it
seems that the trial judge would be obliged to leave the
issue to the jury."

40. This case is complicated by the permutations and combinations made possible by the form of the pleadings.

41. At one extreme, let it be supposed that the plaintiff were to succeed in showing that the matter published carried the imputation that he had committed the crime of burglary.

42. Let it further be supposed that the defendant were to fail to justify that imputation. To my mind, there is no rational basis on which it could be suggested that for the defendant to prove the truth of any, or even all, of the contextual implications that it proposes to plead could possibly have such an effect upon the plaintiff's reputation that calling him a burglar on television would not further injure his reputation.

43. To that extent, therefore, the proposed amendment does not answer that count of the plaintiff's claim. Under the old learning it would have been demurrable. Under a Judicature Act system of pleading, things are not so simple. One must examine all the possible permutations and combinations of plaintiff's innuendo and defendant's contextual implication.

44. At the other extreme of the innuendoes pleaded by the plaintiff is the statement that the matter published meant that the plaintiff was a person who could not be trusted.

45. If the plaintiff made good that imputation, and the defendant could not justify it, it must be asked whether the defendant could possibly succeed by demonstrating that it was true to say of the plaintiff that he had so conducted himself that he was reasonably suspected by members of his own party of leaking confidential information which had been obtained from a fellow party member's safe.

46. It seems obvious to me that a party member who actually did leak such information would be a person who could not be trusted. The plea becomes relevant only on the basis that it could not be shown that he did leak it. It could succeed only on the basis that the defendant proves that he so conducted himself that his fellow party members reasonably suspected him of doing it. Could proving the truth of that have such an effect upon his reputation that falsely saying of him that he could not in fact be trusted would not further injure his reputation? I do not think that it is possible so to hold.

47. Each of the other innuendoes pleaded by the plaintiff is more serious than being a person who could not be trusted, namely, being prepared to act dishonestly to achieve his objects, having committed the crime of burglary, and attempting to break into a safe for a dishonest purpose.

48. In my opinion none of the contextual imputations proposed by the defendant are capable of overtopping any of the innuendoes alleged by the plaintiff.

49. It is for this reason, rather than the lack of a sting which is common to the plaintiff's innuendoes and the defendant's contextual imputations that I am of the opinion that the proposed defence is not sustainable, and would be liable to be struck out if it had been pleaded within time.

50. If I am wrong in coming to that view, I still think that it is an arguable matter of fact that the defendant's proposed contextual implications do arise out of the published material, and therefore, arguably, do have sufficient common sting, but I would not allow the amendment sought for the reasons set out above, namely that there is no explanation of why they were not pleaded at the proper time, and there is no term or condition suggested that would compensate the plaintiff for the loss of his special fixture.

51. There remain the suggested constitutional defences. Nothing that was submitted in argument leads me to believe that they are any more arguable than I thought when giving my previous decision. But it is said that any attempt to discuss their merits brings into play the provisions of the Judiciary Act 1903 with respect to inter se questions.

52. It seems clear to me that if the proposed amendment is permitted there will then be a cause pending in this Court which involves a matter arising under the Constitution or involving its interpretation.

53. Section 78B of the Judiciary Act 1903 would then prevent this Court from proceeding in the cause unless and until it were satisfied that notice of the cause had been given to the Attorneys General of the Commonwealth and the States, and a reasonable time had elapsed for them to consider intervening in the proceedings or removing the cause into the High Court.

54. Counsel for the defendant submitted that for me to embark upon a consideration of not allowing the amendment sought would itself involve me in a question arising under the Constitution or involving its interpretation.

55. If I agreed with his primary submission, namely that I must allow the amendment unless the plaintiff could show that the defence proposed by it was not sustainable, that submission would have force. But for the reasons I have given I do not agree with that primary submission. It is at least possible for me to dispose of this application without embarking upon any consideration of any constitutional question, and that is if the defendant has failed to show that the amendment is necessary to determine the real question between the parties, or if the amendment would prejudice the plaintiff in a way which could not be sufficiently dealt with by some term or condition as to costs or otherwise.

56. Counsel for the defendant informed me that a case in the High Court which is listed for hearing in December will raise similar issues to those raised by the proposed defence. The decision in that case would of course not be handed down until next year. It follows that if the proposed defence is allowed to be put on, either the plaintiff must have his hearing delayed until after some indeterminate date next year, which would inevitably be many months after the High Court hands down its decision, or the constitutional issue would have to be determined as a separate issue in a separate hearing.

57. No matter how promptly the Attorneys General are capable of responding to a Section 78B Notice, the state of the Court's list is such that there is no way that, even as a separate issue, the matter could be heard, let alone be determined, before about March next year.

58. Again, counsel for the defendant offered no term, nor did he suggest any condition, which would adequately compensate the plaintiff for that result.

59. It follows inevitably, in my judgment, that the application must be refused.

60. I order the defendant to pay the plaintiff's costs.