Winnel v Byron [2009] ACTSC 146 (6 November 2009)

Last Updated: 9 November 2009

ROBERT WINNEL v STEPHEN BYRON
[2009] ACTSC 146 (6 November 2009)

DEFAMATION – application to amend statement of claim – minor amendments made – no issue of principle

PRACTICE AND PROCEDURE – application to amend statement of claim – previously amended 3 times – 7 years since claim commenced – long delays - remarks on case management

Evidence Act 1995 s 136
Civil Law (Wrongs) Act 2002 ss122, 139H
Court Procedures Rules 2006 r 502, 503, 504, 21
Limitation Act 1985 s 21B

AON Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; [2009] HCA 27

No. SC 787 of 2002

Judge: Master Harper
Supreme Court of the ACT
Date: 6 November 2009

IN THE SUPREME COURT OF THE )
) No. SC 787 of 2002
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT WINNEL

Plaintiff

AND: STEPHEN BYRON

Defendant

ORDER

Judge: Master Harper
Date: 6 November 2009
Place: Canberra

COURT ORDERS THAT:

1. The plaintiff have leave to deliver within seven days a second further amended statement of claim consistently with these reasons.
2. The filing of a certificate of readiness be dispensed with.
3. The parties have leave to approach the list clerk to fix a hearing date not before 1 July 2010, noting the estimate of three days.
4. The action be removed from the Deputy Registrar’s directions list on 9 November 2009.
5. The action be listed before the Master for directions on 20 November 2009.

1. This is an application by the plaintiff for leave to file and serve a second further amended statement of claim in a defamation action. The application to amend was filed on 22 August 2008, supported by an affidavit sworn on the same date by Mr Biddington, the solicitor with carriage of the matter for the plaintiff.
2. The action was commenced on 17 December 2002 by originating application with an accompanying statement of claim. In the statement of claim, the plaintiff asserted that he was the managing director of a company with a majority interest in land at Tralee, near Queanbeyan in New South Wales, and that the company had applied for approval to develop the land for residential purposes. The plaintiff asserted that the defendant was an employee of Canberra International Airport Pty Ltd. The statement of claim set out an extract from an advertisement published by the plaintiff in the Canberra Times on 3 August 2002.
3. The statement of claim then asserted that on or about 9 August 2002 the defendant caused to be published in the Canberra Times an advertisement which included words defamatory of the plaintiff, using words which in their natural and ordinary meaning meant and were understood to mean that the plaintiff was a liar and had been untruthful. The statement of claim concluded with a prayer for damages and interest.
4. The wording of the plaintiff’s advertisement of 3 August 2002 was set out as follows:
FLIGHT PATH ARGUMENT OFF TRACK
Airport manager Mr Byron says that there ARE some areas “under the main flight path”.
Yes, but Tralee is NOT one of them.
The MAIN flight path for noise is the landing flight path. As the diagram shows, Tralee is NOT under it. Parts of Jerrabomberra are.
5. The defendant’s advertisement of 9 August 2002 said to be defamatory of the plaintiff was set out as follows:
Advertisement
“My statement that Tralee has never been under the flightpath is wrong”
Queanbeyan Mayor, Frank Pangallo, press release 7 August 2002.
“...there are some areas “under the flightpath”. Yes, but Tralee is NOT one of them.”
Bob Winnell, advertisement, The Canberra Times, 3 August 2002.
So who is telling the truth?
The truth is Tralee is under the flightpath and building homes in a high noise aircraft corridor is stupid. We know it. They ought to know it.
6. In June 2003 Higgins CJ gave leave to the plaintiff to deliver an amended statement of claim. The amended statement of claim pleaded that the natural and ordinary meanings of the words complained of were:
(a) that the plaintiff had lied when he had claimed publically that Tralee was not under the main (landing) flight path of Canberra Airport, and
(b) that the plaintiff had been recklessly untruthful when he made that claim.
In the alternative, the statement of claim pleaded that to the extent that either defamatory meaning did not arise as a natural and ordinary meaning, that meaning was a true innuendo arising from facts within the knowledge of people to whom the material was published. The extrinsic facts, in addition to the background facts pleaded earlier, included the fact that the defendant and Canberra International Airport Pty Ltd had publically opposed the proposal by the plaintiff’s company to develop the Tralee land and had asserted that the land was under the airport flight path; and that the plaintiff had authorised the publication of the advertisement of 3 August 2002, including the extract set out above. The statement of claim went on to say that the plaintiff’s hurt had been exacerbated by his knowledge of:
(a) the falsity of the imputation;
(b) the recklessness of the defendant in publishing the false imputations; and
(c) the ulterior motive of the defendant in publishing the matter complained of with the intent to damage both the reputation and credibility of the plaintiff and the prospects of the company proceeding with its development of the Tralee land.
The relief sought was damages including aggravated and exemplary damages, interest and costs.
7. In April 2004 the defendant delivered a defence. The defence denied that the matter complained of was capable of bearing or that it did bear the defamatory meanings asserted by the plaintiff, and further relied on the defences of qualified privilege and fair comment on a matter of public interest.
8. The plaintiff filed a reply in May 2004. In response to the defence of qualified privilege, the plaintiff asserted that the defendant had been actuated by malice.
9. The matter proceeded at a leisurely pace over the next two years. The defendant was ordered to answer interrogatories, and did so. Both parties swore affidavits as to documents, and I infer that the process of discovery took place. In May 2006 a certificate of readiness was signed by the solicitors for both parties and filed, certifying that the action was ready for trial, the trial likely to see eight witnesses called in the plaintiff’s case and two in the defendant’s case, and to occupy three days. In August 2006, the deputy registrar ordered that the certificate of readiness be vacated. Little then happened until December 2007, when, without opposition by the defendant, the plaintiff filed a further amended statement of claim. In that statement of claim, three further publications by the defendant of the material complained of were asserted, in two other newspapers, all within less than two weeks of the first publication. The particulars of natural and ordinary meanings were amended to read:
(a) The plaintiff lied to the public by claiming that Tralee was not under the flight path.
(b) The plaintiff attempted to mislead the public by claiming that Tralee was not under the flight path.
(c) The plaintiff had not told the truth when he claimed publically that Tralee was not under the flight path.
10. The true innuendo count, with its accompanying particulars of extrinsic facts, was deleted. The relief claimed at the end of the statement of claim, as previously, was for damages including aggravated and exemplary damages, interest and costs. Particulars of aggravated damages, as previously, were set out but there was not reference to the claim for exemplary damages elsewhere in the pleading.
11. The defendant delivered a defence to the further amended statement of claim in February 2008. Defences of truth and contextual truth were added to the existing defences.
12. In June 2008 the plaintiff filed a reply to this defence, again asserting malice.
13. The application now before the Court was filed in September 2008.
14. On the hearing of the application, senior counsel for the plaintiff tendered a copy of the advertisement authorised by the plaintiff which appeared in the Canberra Times on 3 August 2002, the opening words of which were set out in the first two versions of the statement of claim but omitted from the third version. I admitted the document into evidence but limited its use pursuant to section 136 of the Evidence Act 1995 to so that it was not to be taken as evidence of the truth of its contents.
15. It will be observed that there was a difference between the words used in the plaintiff’s advertisement of 3 August 2002 and the defendant’s advertisements which are said to be defamatory. The difference is that in the former, the quotation appeared “under the main flight path”, whereas in the defendant’s advertisements the quotation was worded “under the flightpath”. This distinction was apparent on the face of the first two versions of the statement of claim, whilst the wording of the plaintiff’s advertisement was not reproduced in the third version.
16. The present application seeks leave to amend the third version in a number of respects. Firstly, it seeks to add to the particulars of natural and ordinary meanings, in each of the three paragraphs giving those particulars, the words “in an advertisement in the Canberra Times on 3 August 2002.”
17. Secondly, the proposed amendment adds a paragraph in these words:
The defendant’s conduct was unjustifiable and in contumelious disregard of the plaintiff’s rights, and warrants an award of aggravated and exemplary damages.
18. The previous particulars of aggravated damages are sought to be amended, firstly by changing the heading to “Particulars of aggravated and exemplary damages”, and secondly by adding five additional paragraphs setting out particulars of the matters of which the plaintiff is said to have had knowledge, such knowledge having exacerbated his hurt. The most significant of the further particulars was the proposed paragraph 6(d) which would read as follows:
The defendant published the matter complained of and the imputations conveyed by it, notwithstanding his awareness that in the plaintiff’s advertisement in the Canberra Times on 3 August 2002 the plaintiff
(i) had not asserted that Tralee was not “under the flight path”, but rather
(ii) had asserted that Tralee was not “under the main flight path”;
The particulars further assert that the omission of the word “main” was deliberate on the defendant’s part.
19. The third amendment sought to the third version was the addition in the relief claimed of an order under section 122 of the Civil Law (Wrongs) Act 2002 vindicating the plaintiff.
20. The Civil Law (Wrongs) Act came into force on 1 November 2002, and it is now common ground that, the cause of action having arisen three months earlier, the Act has no application. This disposes of a further issue which briefly arose for consideration during submissions by counsel: section 139H of the Act provides that a plaintiff cannot be awarded exemplary or punitive damages for defamation. It is now clear that that section would not prevent an award of exemplary damages in an action arising out of a cause of action which arose before the Act came into effect.
21. The power to make the order sought by the plaintiff is conferred by r 502 of the Court Procedures Rules 2006. R 502(1) provides that at any stage of a proceeding, the Court may give leave for a party to amend a pleading. R 502(3) permits the Court to give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
22. R 503 applies to an application for leave to amend where a relevant limitation period has ended. R 503(4) provides that the Court may give leave to make an amendment to include a new cause of action only if the Court considers it appropriate, and if the new cause of action arises out of the same or substantially the same facts as a cause of action for which relief has already been claimed. Senior counsel for the defendant submits that the amendments sought by the plaintiff would amount to the inclusion of a new cause or causes of action.
23. The limitation period for the bringing of an action for defamation in the Australian Capital Territory was once six years, but this has not been the case since well before the commencement of the present action. The Limitation Act 1985 was amended in 1998 to add section 21B, which provided that an action for defamation was not maintainable if brought after the expiration of a limitation period of one year from the date of first publication. The section permitted the Court to grant an extension, in limited circumstances, for a further year. The section has since been amended to increase the possible extension period to two years, but the basic limitation period of twelve months remains in place. The present action was commenced well within a year of publication, but the limitation period unquestionably expired during August 2003. Assuming for the moment that the submission of senior counsel for the defendant that the amendment would add one or more new causes of action is well-founded, the length of time since the expiry of the limitation period would, it seems to me, be a relevant factor to the exercise of the discretion under r 502.
24. However, on reflection, I have come to the conclusion that the proposed amendment which would add the words “in an advertisement in the Canberra Times on 3 August 2002” to each of the three paragraphs setting out particulars of natural and ordinary meanings would not give rise to fresh causes of action. The comparison to be made is between the current pleading, that is the third version of the statement of claim of December 2007, and the proposed fourth version. The third version gave the same particulars of natural and ordinary meanings but without specific reference to the date and manner of publication. On my reading of the third version, paragraph 4 with its particulars of natural and ordinary meaning must be read as adverting to, and only to, the advertisement annexed to the statement of claim and marked “A”, and specifically to the quotation identified in the advertisement as being from the plaintiff’s advertisement in the Canberra Times of 3 August 2002. Thus it seems to me that the words proposed to be added in reality add nothing new to the particulars, and do no more than dispel any possible confusion as to that link. On this analysis, that part of the amendment would not raise any new cause of action and accordingly does not trigger the limitation-period considerations in r 504(4).
25. Different considerations apply as to whether the plaintiff should be given leave to include a specific claim for exemplary damages, with the further particulars proposed to be added to clause 6. I acknowledge that the prayer for relief has included the words “damages including aggravated and exemplary damages” since the second version of the statement of claim in June 2003. It seems to me a relevant consideration, in exercising a discretion to permit an amendment, that the Civil Law (Wrongs) Act was amended in 2006 to abolish exemplary damages in defamation actions, though not with retrospective effect. If the plaintiff’s pleading had already been in the form to which he now wishes to amend it, the Act would not have applied so as to prevent recovery of exemplary damages. But it must be recognised that since 2006 it has been the policy of the legislature not to permit recovery of exemplary damages in future defamation actions.
26. I express no opinion on whether the inclusion of exemplary damages in the prayer for relief since version 2 of the statement of claim will be held at trial to be enough to entitle the plaintiff to exemplary damages if he can establish a basis for such an award. That will be a matter for the trial judge.
27. I am mindful, also, in exercising the discretion to permit such an amendment at this stage, of the decision of the High Court of Australia in AON Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; [2009] HCA 27, in particular in the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [96], [98], [102] and [103]. AON Risk Services was a decision arising on appeal from a decision of a judge of this Court to allow an amendment of a statement of claim under r 502 of the Court Procedures Rules. Their Honours adverted at [103] to the necessity as a general rule for an explanation for any delay relevant to the amendment of a pleading. In the present case there has been no real explanation. Mr Biddington’s affidavit in support of the application does not deal with the question of delay.
28. On one view it might be argued that the only relevant delay is that since the third version of the statement of claim was filed in December 2007, though even that is a delay now approaching two years. The length of time which has elapsed since the present application was filed, more than a year, seems inordinate although I am told that at some time during that period a fruitless mediation took place. It seems to me that the lapse of time since proceedings were commenced, and indeed since publication itself, is a relevant consideration to the exercise of the discretion. As senior counsel for the defendant pointed out during submissions, the purpose of an action in defamation is to vindicate as quickly as possible the reputation of the person who has been defamed. It is now seven years since the publication and institution of proceedings. The delays reflect poorly on all involved, including the Court. The bench sheets reveal that the action has been before the Court on 86 separate occasions, most of which were before the Registrar or Deputy Registrar, for directions, the principal case-management tool used by the Court. It is apparent that both parties have allowed lengthy periods to pass without any real progress, and that the Court’s case-management system has achieved little if anything by way of steps being taken within a reasonable time-frame. The majority judgment in AON Risk Services, with which French CJ and Heydon J agreed as to the outcome, included at [113]:
In the past it has been left largely to the parties to prepare for trial and to seek the Court’s assistance as required. Those times are long gone.
29. Their Honours referred at [144] to r 21 of the Court Procedures Rules in the following terms:
R 21 ... recognises the purposes of case-management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the parties to the proceedings in question, but to other litigants.
30. The cost to the parties of 86 separate attendances before the Court in an action of this nature scarcely bears contemplation. Whilst, as I have said, both parties and the Court must accept a degree of responsibility for the length of time which has been allowed to pass since the proceedings were instituted, for the purposes of the present application it is the plaintiff who must be seen as bearing the major responsibility for the delay. It is the plaintiff who brings the action. The proposed further amended statement of claim will be the fourth version of the statement of claim, after seven years.
31. Weighing the considerations up, it seems to me that the plaintiff should not be permitted to amend the statement of claim to plead a claim for exemplary damages in specific terms.
32. I mentioned earlier that the plaintiff also seeks to amend so as to add a prayer for an order under s 122 of the Civil Law (Wrongs) Act for vindication. Neither counsel made specific submissions as to this proposed amendment. This is no doubt because it became apparent during argument that the defamation provisions of the Civil Law (Wrongs) Act are not applicable because the cause of action arose before they came into effect. That amendment will not be permitted.
33. The plaintiff will be permitted to make the amendments to paragraph 4 which are sought. The balance of the amendments sought will not be allowed.
34. With a view to progressing the action towards trial without further delay, I shall order that the second further amended statement of claim is to be filed and served within seven days. I shall order that a certificate of readiness be dispensed with, and that the parties approach the list clerk to fix a hearing date for the action, no earlier than 1 July 2010, noting the estimate of three days. The action will be placed in a Friday applications list before me for supervision on 20 November 2009.
35. My provisional view is that the plaintiff, who has come to the Court seeking an indulgence and has been only partly successful, should pay the defendant’s costs of the application. I shall provide the parties with an opportunity to be heard before making an order about costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 6 November 2009

Counsel for the plaintiff: Mr KP Smark SC
Solicitors for the plaintiff: J. S. O’Connor Harris & Co
Counsel for the defendant: Mr RR Stitt QC
Solicitors for the defendant: Mallesons Stephens Jaques
Date of hearing: 29 October 2009
Date of judgment: 6 November 2009