Charles Nelson Perkins v Nationwide News Pty Ltd [1992] ACTSC 36; (1992) 106 FLR 368 (28 April 1992)

SUPREME COURT OF THE ACT

CHARLES NELSON PERKINS v. NATIONWIDE NEWS PTY LTD
S.C. No. 1448 of 1988
Appeal - Defamation
[1992] ACTSC 36; (1992) 106 FLR 368

COURT

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

CATCHWORDS

Appeal from Master - procedure on appeal - grounds for appeal.

Defamation - actions for defamation - pleadings - amendment of statement of defence to include defence of justification - principles of case management discussed - no explanation for delay in raising plea - lack of evidence to support facts asserted in particulars of proposed amended defence.

Ketteman and Others v. Hansel Properties Ltd and Others (1987) AC 189

The Commonwealth of Australia v. Verwayen [1990] HCA 39; (1990) 170 CLR 394

Waterhouse v. Broadcasting Station 2GB Pty Ltd (unreported, 20 October 1986, Supreme Court of NSW)

HEARING

CANBERRA
28:4:1992

Counsel for the plaintiff: Mr T. Hughes, QC with Mr Hughes

Solicitors for the plaintiff: Macphillamy Cummins and Gibson

Counsel for the defendant: Mr A. Shand, QC with Mr B. Loftus

Solicitors for the defendant: Gallens Crowley and Chamberlain

COURT

THE COURT ORDERS THAT:
1. The appeal be dismissed.

2. The costs of the appeal be reserved to the trial.

DECISION

This is an appeal from the decision of the Master on 8 April 1992 refusing leave to amend a defence to a statement of claim in defamation. The matter complained of was published on 11 November 1988. The writ was issued on 14 November 1988. Particulars of the plaintiff's claim were requested and supplied. A defence was filed on 16 June 1989. The plaintiff gave discovery on 9 January 1990 and further discovery on 19 September 1990. The defendant also gave discovery. A certificate of readiness was filed on 30 September 1991. There were two listing conferences and the matter was fixed for hearing on 25 May next, estimated to last two weeks. Time has been set aside by the Court accordingly. The notice of motion to amend the defence was filed on 24 March 1992.

2. Publication was alleged in various parts of Australia, and the statement of claim and the defences reflect the differences in defamation law as they presently exist in the States and Territories. However, it is sufficient to say that the defence initially filed denied that the matter complained of was defamatory of the plaintiff, denied the imputations pleaded by the plaintiff and raised defences of fair comment and qualified privilege. The proposed amendments raise matters by way of justification. There was evidence that although the matters giving rise to the plea of justification had been the subject of investigation over the last eighteen months or so, the decision to raise the plea of justification was made only last March on the advice of senior counsel. On the other hand, the Master felt that there was nothing in the evidence to show why the defence was not available at the time the certificate of readiness was filed. That view was open to the Master and I need to be convinced that it was an erroneous view.

3. Under s.8AAA of the Australian Capital Territory Supreme Court Act 1930 (the Act), an appeal from the Master on an interlocutory matter is to a single judge who is to have regard to the evidence before the Master with power to draw inferences of fact and to receive further evidence. The judge may affirm, vary or set aside the Master's judgment and make such other orders as in all the circumstances the judge considers just. However, in accordance with established principle, the Judge will not interfere with any findings of fact of the Master based on demeanour of witnesses, and if the appeal is from a decision of a discretionary nature, then the Judge will not interfere with the Master's exercise of discretion unless it can be shown that the Master was in error on a matter of law or an established matter of fact or that his decision was manifestly unjust to the extent that although error cannot be identified, it must be implied.

4. The matters of justification are raised in paragraphs 11 to 14 inclusive of the proposed amended defence. It is sufficient to deal only with paragraph 11, as the principles apply to the other paragraphs as well.

5. Paragraph 11 of the proposed amended defence seeks to set out in detail the particulars of the matters which are raised in justification of the imputations pleaded in each of sub-paragraphs 5(a) to 5(e) of the statement of claim. The Master ruled that the matters raised in answer to sub-paragraphs 5(a) and 5(b) did not go to establish a plea in justification. This ruling was a ruling on a matter of law. My own view is contrary to that of the Master. In my view the particulars raise facts which if proved could or might be sufficient to justify the imputation alleged by the plaintiff.

6. Sub-paragraph 5(a) alleges an imputation "that the plaintiff was prepared fraudulently to use taxpayers' money for his own purposes". The Master apparently took the view that the facts alleged to justify the imputation would not be sufficient to prove fraudulent conduct or intent on the part of the plaintiff. On the contrary, it is my view that insofar as the particulars contain an allegation that the plaintiff as acting Commissioner, Aboriginal Development Commission, failed to disclose to the Minister decisions of the Woden Town Club, of which the plaintiff was President, to accept a grant from the Aboriginal Development Commission when the plaintiff knew the Minister was opposed to the grant, that allegation, if proved, is sufficient for a tribunal of fact to conclude that the plaintiff acted fraudulently.

7. With regard to the further imputation that the plaintiff had used taxpayers' money for his own purposes, the Master took the view that the imputation could be justified only if the term "his own purposes" is synonymous with "the purposes of the Woden Town Club". Again, I have to differ from the Master on this point of law. It could be sufficient to prove that the plaintiff's "own purposes" included those of the Woden Town Club. That ultimately, again, is a question of fact.

8. With regard to imputation 5(b), there is no allegation of fraud. The imputation alleged is that the plaintiff was dismissed for over-indulgent use of taxpayers' moneys for his own purposes. Again, I think that the Master construed the term "his own purposes" too narrowly, and I consider that he was in error on this question of law.

9. However, the Master considered that the matters raised in order to justify sub-paragraphs 5(c), 5(d) and 5(e) of the imputations pleaded by the plaintiff were sufficient for that purpose and went on to consider and ultimately to reject the application to amend the defence. I have therefore to consider whether or not the Master erred in his ultimate decision.

10. It was submitted on behalf of the appellant defendant that the Master's decision was affected by an express but unjustified scepticism. It was submitted that the scepticism was irrelevant. I agree that the Master's scepticism did not justify a conclusion that the defendant would not pursue at the trial the issues sought to be raised by the proposed amendments. However, I think that the Master's scepticism was directed not at the prospect of the defendant failing at trial to pursue the issue of justification but was expressed by way of comment on the time it had taken the defendant to decide that the imputations alleged by the plaintiff, although denied by the defendant, were nevertheless true. In that sense I think that the Master's scepticism was a means of expressing his lack of satisfaction at the material presented to him which sought to explain the delay in raising the plea of justification.

11. It was further submitted that the Master gave too much weight to the fact that the plaintiff had already obtained a hearing date and to the consideration that the Court had set aside a substantial amount of time to hear the case, and, conversely, did not give enough weight to the question of injustice to the defendant if the proposed plea of justification was not allowed. In this respect the Master took into consideration what is now recognized by courts throughout Australia, as indeed elsewhere, as a very important principle of proper case management. The principle is that once the parties have indicated their readiness for trial and the court has allocated time for disposition of the case, the court should be slow to accede to a request by one or even both parties to vacate the hearing time allocated. That is a particularly important principle in this Court with its limited resources and consequent restricted flexibility in listing procedures. Application of the principle is important in trying to minimise costs and to reduce delay. But it is not an overriding principle. On the one hand there is a general duty in the court to seek to do justice not only between the parties to a particular case being heard or to be heard, but to all who are parties and in all cases. On the other hand, s.43 of the Act, which the Master correctly recognized as laying down another "basic principle", requires the Court to allow all such amendments for the purpose of determining the real questions in controversy or otherwise depending upon the proceedings. However, I do not think that s.43 was intended to take away any discretion in the court to disallow proposed amendments when it would not be just to allow them. Furthermore, s.43 is not the only source of the Court's power to grant amendments. It appears to be narrower in scope than O.32 r.12. If a choice has to be made, it appears to me that the present application to amend is brought under O.32 r.12 rather than under s.43 of the Act which bears the heading "Amendment of defect in proceedings". There is no defect or error in the present proceedings which requires any amendment.

12. The Master took the view that to allow the amendment would require vacation of the two weeks set aside for the hearing. It is not disputed that the Master was correct in taking that attitude, as the plaintiff would not be ready to proceed to trial on the date allocated if the amendments were allowed. Furthermore, the Master observed correctly that to deprive the plaintiff of the date and time fixed for hearing was not a matter to be entertained lightly, and quoted from Ketteman and Others v. Hansel Properties Ltd and Others (1987) AC 189 where Lord Griffiths said at 220 that "Justice cannot always be measured in terms of money."

13. In this respect the Master was clearly correct. The High Court has referred to the judgment of Lord Griffiths with apparent approval in The Commonwealth of Australia v. Verwayen [1990] HCA 39; (1990) 170 CLR 394. For instance, at 482, Gaudron J. said as follows:

"If, in the course of litigation, a person fails to
plead a matter, take an available objection or pursue a
particular point of law, the matter proceeds on the basis
that the point which might have been taken is not in
issue. Were it otherwise the conduct of litigation would
be unmanageable. Of course, leave may be granted for the
point to be raised notwithstanding the failure to take the
point at the appropriate time. Generally, leave is
granted if the point can be raised without injustice to
the other party. That question may depend upon whether
disadvantage to the other party can be avoided by
adjournment or an appropriate costs order. But other
issues may be taken into account."

14. Amongst the issues acknowledged by Lord Griffiths and by the High Court are the strain imposed upon litigants, the pressure on the courts and the public interest in the efficient conduct of legal business.

15. The Master was clearly unimpressed by the effect of the evidence which sought to explain the failure of the defendant to raise the plea of justification at an earlier stage. That evidence came from a solicitor who had had conduct of the matter only for some three weeks before the hearing before the Master. She had no personal knowledge of the state of preparation at the time of the furnishing of the certificate of readiness nor on the occasions of the listing conferences. Most of what the solicitor said in her affidavits was based on information and belief, and it was obvious that in that situation, cross-examination of the solicitor could not shed any light on the true reasons for the delay. Whilst the Master took into account the agreement of the parties that no inference adverse to the defendant was to be drawn from the assignment of the case to the solicitor who swore the affidavits, the fact remained that there was no explanation for the absence of any evidence from anyone with any real knowledge of the background of the case. The Master noted that there was no evidence of the identity of the persons said to be interviewed "recently" in relation to the matters raised by way of justification and no evidence of why those interviews had not taken place earlier.

16. Furthermore, and in my own view, it was a matter which the Master tended to under-emphasise in his reasons, there was a complete lack of evidence to support the facts asserted in the particulars set out in the proposed amended defence. This is a different matter from evidence relating to the delay. As Hunt J. remarked in Waterhouse v. Broadcasting Station 2GB Pty Ltd (unreported, 20 October 1986), any party who seeks to amend a case at the last minute will not be permitted to shelter behind the ordinary rules in relation to the supply of particulars and in most cases the prejudice caused by late amendments can be met only by making the other party aware of not only the nature of the case which the party has to meet but also a broad outline of the evidence by which that case is to be proved. That evidence is completely lacking in the present matter. There is nothing to show that the defendant is in a position to prove any of the various detailed matters set out in paragraph 11 of the proposed amended defence.

17. Hence, whilst I think that the Master was incorrect in ruling that the particulars set out in the proposed amended defence did not go to raise a plea of justification in answer to sub-paragraphs 5(a) and 5(b) of the statement of claim, I do not think that the Master erred in his discretion to refuse the application to amend the defence. The appeal is dismissed. Costs of the appeal to be reserved to the trial.