Charles Nelson Perkins v Nationwide News Pty Limited [1992] ACTSC 31 (8 April 1992)

SUPREME COURT OF THE ACT

CHARLES NELSON PERKINS v. NATIONWIDE NEWS PTY LIMITED
S.C. No. 1448 of 1988
Practice and Procedure

COURT

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

CATCHWORDS

Practice and Procedure - Amendment - Defamation - Plea of Justification - Late Amendment - Certificate of Readiness Obligations of Solicitors - Case listed for hearing - Prejudice to Plaintiff - Conduct of Defence - No Evidence of Due Diligence - Amendment Refused.

Australian Capital Territory Supreme Court Act 1933 s.43

Rules of the Supreme Court of the Australian Capital Territory O32 r1.

Atkinson v Fitzwalter (1987) 1 WLR 201

Mehta v Commonwealth Bank of Australia (Supreme Court of NSW, Commercial Division, 7 May 1990, Unreported)

Cropper v Smith (1884) 26 Ch D 700 at 711

Ketteman v Hansel Properties Ltd (1987) 1 AC 189 at 220

HEARING

CANBERRA
8:4:1992

ORDER

The application be refused.

The defendant pay the plaintiff's costs.

DECISION

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

2. In November 1988 the plaintiff was secretary of the Commonwealth Department of Aboriginal Affairs and a Commissioner with the Aboriginal Development Commission. He ceased to occupy those positions on about 4 November 1988.

3. On 11 November the defendant, in its newspaper, "The Australian", published throughout Australia certain material which the plaintiff claimed was defamatory to him.

4. The Writ in the action, generally indorsed, was issued on 14 November 1988. The Statement of Claim followed on 4 January 1989. Following a request for and supply of particulars the Defence was delivered on 16 June 1989. The reply was dated 22 August 1989.

5. The imputations pleaded in the Statement of Claim were:
(a) that the plaintiff was prepared fraudulently to use

tax payers' money for his own purposes;
(b) that the plaintiff had been dismissed from his
position as secretary of the Department of Aboriginal
Affairs for his overindulgent use and/or acceptance of tax
payers' money for his own purposes;
(c) that the plaintiff had exhibited wanton disrespect
for use of tax payers' money in his capacity as Secretary
of the Department of Aboriginal Affairs;
(d) that the plaintiff was guilty of wastage and
mismanagement of tax payers' money in his capacity as
secretary of the Department of Aboriginal Affairs;
(e) that the plaintiff was irresponsible in the use of
tax payers' money in his capacity as secretary of the
Department of Aboriginal Affairs;
(f) that the plaintiff was a thief.

6. The defence, in summary, denied that the matter complained of bore or was capable of bearing those imputations or that the matter was or was capable of being defamatory of the plaintiff. It then, alternatively, raised a series of defences of qualified privilege and fair comment, varying in detail according to the detail of the different defences available in different parts of Australia.

7. The reply alleged express malice and unreasonable conduct.

8. There then followed the processes of discovery and interrogatories, punctuated, as is not uncommon in this type of litigation, by applications to the Court for further particulars, answers or discovery. I do not think I need to analyse the details of that process, other than to say that I do not detect, from an inspection of the Court file, any indication that the plaintiff was dilatory or unwilling to get the case on for trial.

9. A certificate of readiness was lodged with the Court on 30 September 1991. Both solicitors in that document certified that the suit was ready for trial and that the issues were as disclosed in the pleadings, or, in the defendant's phraseology, "Whether the plaintiff has been defamed and if so, whether damages should be awarded."

10. The plaintiff estimated the length of hearing at 10 days, the defendant at 21 days.

11. Following a listing hearing the hearing was first fixed for 21 April 1992 by Notice dated 20 November 1991. That hearing date was later vacated, for reasons which are not in evidence, and by Notice dated 26 February 1992 the hearing was fixed for 25 May 1992, and was allotted 10 hearing days.

12. This application was made by Notice of Motion dated 24 March 1992, returnable on 27 March 1992. On that day it was adjourned by consent to 3 April 1992, less than two months before the date fixed for hearing.

13. That hearing date is itself three and a half years after the publication of the alleged defamatory matter and the issue of the Writ.

14. The form of the proposed amended defence is annexed to the affidavit of the solicitor who now has the carriage of the action for the defendant.

15. The amendment seeks to add, in the varying forms appropriate to the particular States and Territories, defences of justification.

16. The details of the particulars proposed to be supplied within the defence show that the defendant seeks to amend the pleadings so as to enable it to call evidence and attempt to prove at the trial, inter alia, that imputations (a) (b) (c) (d) and (e) set out in the Statement of Claim were true. It does not seek to justify imputation (f), relying instead on its defence that the particular imputation did not, and could not possibly, arise.

17. I agree with the submission of counsel for the defendant that there is not a separate and special rule of practice relating to the effect of delay upon the granting of leave to allow a defendant to raise a defence of justification in defamation proceedings.

18. The basic principle remains that set out both in the Supreme Court Act and the Rules, that all such amendments must be made as are necessary to enable the true issues between the parties to be determined.

19. I am also conscious that grave injustice could be done to a defendant in defamation proceedings who was prevented from proving the truth of his allegations about the plaintiff simply because he did not have the necessary evidence at the time of delivering his defence, or even at some later time.

20. This is not a case where the defendant has unequivocally asserted that the plaintiff was fraudulent. As Stocker L.J. pointed out in Atkinson v Fitzwalter (1987) 1 WLR 201 at 221 such a defendant should be in possession of all the relevant facts before it makes the defamatory statement. This defendant has raised, and persists in, the defence that the material that it published did not, and could not, give rise to the imputations of fraud that are in issue.

21. But the conduct of the defence, the length of the delay, the diligence of the defendant's advisers, and the extent of prejudice to the plaintiff are all considerations which are relevant to the exercise of the undoubted discretion, within the basic principle enunciated in s.43 of the Australian Capital Territory Supreme Court Act 1933 and O32 r1 of the Rules. Principles and considerations have been expounded in very many cases, which I do not propose to review, but I would respectfully express my concurrence with the comments of Rogers C.J. Comm D in Mehta v Commonwealth Bank of Australia (Supreme Court of NSW Commercial Division, 7 May 1990, unreported) to which I was referred during argument.

22. I propose to take into account only such considerations as arise from the evidence and the record in this case.

23. That evidence was quite short. A solicitor in the employ of the solicitors for the defendant was directed, only weeks before the motion, to take over from him the carriage of the action, and it was she who swore two affidavits in support of it. It was not suggested that I should, and I hope I made clear during argument that I did not, draw any inference adverse to the defendant, its solicitors, and especially to her, from that circumstance. It is clear also that she has properly acted in accordance with the advice of senior counsel.

24. The evidence, simply summarised, was that in the course of preparation of the action the defendant had established instances which in its view involved the careless or irresponsible disbursing of funds, and which involved the plaintiff. Some of those instances were those referred to in the particulars set out in the proposed amendments. Senior counsel had advised that the imputations concerning irresponsible or careless use of government revenue were justifiable on the basis of evidence that could be led at the trial if the proposed amendments were allowed.

25. Senior counsel's advice had been received recently, after a consideration of the information which the defendant had then collected in preparation for the hearing.

26. Senior counsel's advice had first been sought in relation to the defences some eighteen months ago. Senior counsel had advised that, on the basis of the admissible evidence then available, as opposed to the information in the defendant's possession, further work would be needed to put the information into admissible form, sufficiently to justify the defence in taking the serious step of pleading justification for publication of an allegation of fraud.

27. That further work took the form of additional discovery, additional interrogatories addressed to the plaintiff, subpoenaed material and further interviews.

28. On cross-examination it transpired that the additional discovery had been given in September 1990, the additional interrogatories had been answered in September 1991, and the subpoenaed material had been available for inspection in March 1991. The further interviews had taken place within the weeks preceding this motion, in 1992, but the deponent was not in a position to disclose the identity of the persons interviewed, nor to give any reason why the interviews had not taken place earlier.

29. The plaintiff put into evidence a statement made by the Minister for Aboriginal Affairs in the House of Representatives on 7 November 1988, in which he gave his reasons for seeking to have the plaintiff cease to be the head of his department, and a special audit report by the Australian Audit office, dated 10 March 1989, into the affairs of the Aboriginal Development Commission and the Department of Aboriginal Affairs.

30. Both those exhibits dealt with some of the matters referred to in the particulars set out in the proposed amendments to the Defence. I do not regard them as significant, however, because, as the defendant's submissions make clear, it is one thing to have information which is not admissible in evidence, but which indicates matters for investigation. It is quite another thing to have admissible evidence to back up an allegation in a pleading which seeks to justify an imputation of fraud. It is only when a defendant has the admissible evidence that its advisers are entitled to put on the pleading.

31. I have compared the allegations in the particulars of the proposed amendment with the imputations to which they are pleaded.

32. Imputation (a) is that the plaintiff was prepared fraudulently to use taxpayers' money for his own purposes. If the particulars set out in paragraph 11(a) (i) to (xiii) were proved, I do not think it would be arguable that they justified such an imputation. At the most they would justify an imputation that the plaintiff deliberately misled the Minister in order to enable the Woden Town Club to obtain public moneys which the Minister had decided it should not receive, which is by no means the same thing, even it be accepted that the plaintiff was president of the Woden Town Club, had a number of friends who were members, and was a strong proponent of it.

33. It is only if it is accepted that "his own purposes" is synonymous with "the purposes of the Woden Town Club" that imputation (b) could be justified by proof of the matters particularised. I do not think the words do bear that meaning.

34. I note also that the evidence given by the defendant's solicitor spoke only of instances of careless or irresponsible disbursing of funds, proof of which had been obtained since the defence was filed. There is no express evidence that any evidence has come to hand, or exists, tending to show that the plaintiff was prepared fraudulently to use taxpayers' money for his own purposes, or that his dismissal had been the consequence of the use or acceptance of taxpayers' money for his own purposes, whether through overindulgence or not.

35. So far as those amendments are concerned, therefore, they would not meet their purpose, they would be useless, and would tend to embarrass the trial by investigating matters which would not afford a defence, and should not be permitted on that ground alone.

36. On the other hand, I think that proof of the matters particularised as to imputations (c), (d) and (e) could justify those imputations. Whether they did so would be for the trial judge to decide.

37. But even if I am taking too restrictive and strict a view about the efficacy of the proposed amendments, there is still no satisfactory evidence of the reasons why admissible evidence to support them did not become available until shortly before the trial.

38. Certificates of Readiness mean what they say. When a solicitor, an officer of the Court, signs one, he or she is undertaking a responsibility to the Court to be frank and accurate. The solicitor for the defendant, that is, the partner who then had the conduct of the action, and who still is the responsible person as the solicitor on the record, so far as the Court is concerned, signed the certificate that the issues were as disclosed in the pleadings. He also certified that counsel's advice on evidence had been obtained, and that all witness would be available at trial.

39. If there were then in train, to his knowledge, investigations into matters that might lead to the amendment of those pleadings, the certificate should not have been given. In the result the plaintiff has proceeded in his preparation for trial, and the Court has allocated two weeks of scarce and valuable Court time, on the basis certified.

40. In these circumstances something more is needed than appears in this application to persuade me that the amendment is genuinely needed in order to determine the real issues between the parties.

41. It is the defendant after all, not the Court, or the plaintiff, who decides what issues the defendant wants to be adjudicated. That is the principal function of pleading. If a defendant seeks to amend in circumstances such as are present in this case there will need to be persuasive evidence of the genuineness of the matters to be raised. On the evidence in this application I hope I may be forgiven for being at least sceptical.

42. If the amendment were allowed it is obvious that the plaintiff would be obliged to undertake a considerable amount of work in order to meet the charges then to be levelled against him.

43. Counsel for the defendant was prepared to undertake to cooperate in ensuring that, so far as the defendant is concerned, there should be no impairment to that readiness for hearing.

44. I am certain that cooperation from the defence would not be sufficient, and even if the plaintiff were prepared to take the chance I would not be prepared to take the risk of an aborted hearing or vacation of a hearing date involving two weeks of judicial time. If the amendment were granted I would, in the interests of proper case management, vacate the hearing date now and direct the parties to give a fresh certificate of readiness before another date were allocated.

45. That means that there must also be placed in the balance the interest of the plaintiff in not losing the fixture he has obtained. This is one of those cases where the anodyne of costs to which Bowen L.J. referred in Cropper v Smith (1884) 26 Ch D 700 at 711 has lost a great deal of its efficacy.

46. I think that remarks that are more to the point are those of Lord Griffiths in Ketteman v Hansel Properties Ltd (1987) 1 AC 189 at 220, where he said:

"Justice cannot always be measured in terms of money and in my
view a judge is entitled to weigh in the balance the strain the
litigation imposes on litigants, particularly if they are personal
litigants rather than business corporations, the anxieties
occasioned by facing new issues, the raising of false hopes, and the
legitimate expectation that the trial will determine the issues one
way or another."

47. After three and a half years the plaintiff, with the concurrence of the defendant, has obtained a hearing date now less than two months away, when there is to be heard a case in which he hopes to vindicate his reputation. Until now the defendant has led him to believe that the case would be about whether, as a result of what the defendant published, anyone would have thought as badly of him as he alleges in his imputations, and whether, if they could or would, the defendant was protected by qualified privilege.

48. The defendant now seeks to change the ambit of the case, and to set out to prove that if the words did bear those imputations, broadly described as fraud, mismanagement and irresponsibility in high public service, those imputations were true in substance and in fact and that it was for the public benefit that they should be published.

49. I think that the prejudice to the plaintiff that would be occasioned by such a change at this stage of the proceedings is one which could not be compensated by an award of costs or any other order that was suggested to me or that I can think of.

50. On the other hand the defendant has not given satisfactory evidence to explain just what is the evidence now in its possession that it did not have, at least when the certificate of readiness was signed, nor why it was not available to it by the exercise of reasonable diligence. Nor is there any explanation why a misleading certificate of readiness was given to the Court.

51. In these circumstances justice seems to me to require that the defendant be obliged to litigate the issues that it originally chose, and which it certified as being the issues for trial.

52. I am not persuaded that I should exercise the discretion to amend in the defendant's favour.

53. The application is refused.

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