Ahmed v Nationwide News Pty Limited

[2010] NSWDC 268

NEW SOUTH WALES DISTRICT COURT

CITATION:
Ahmed v Nationwide News Pty Limited [2010] NSWDC 268

FILE NUMBER(S):
2010/99482

HEARING DATE(S):
5 November 2010

JUDGMENT DATE:
29 November 2010

PARTIES:
Rafiq Ahmed (plaintiff)
Nationwide News Pty Limited (defendant)

JUDGMENT OF:
Bozic SC DCJ     

COUNSEL:
Mr R Rasmussen (plaintiff)
Mr D Sibtain (defendant)

SOLICITORS:
Juris Australia, Lawyers (plaintiff)
Blake Dawson  (defendant)

CATCHWORDS:
TORTS
defamation
whether plaintiff should be permitted to amend statement of claim to 'plead back' defendant's contextual imputations
degree of injustice suffered if amendment permitted

LEGISLATION CITED:
Civil Procedure Act 2005
Defamation Act 2005

CASES CITED:
Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485
Creighton v Nationwide News Pty Limited (No 2) [2010] NSWDC 192
Fernando v Commissioner of Police (1995) 36 NSWLR 567
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Telstra Corporation Limited v Treloar [2000] FCA 1170
Walton v Gardiner (1993) 177 CLR 378

TEXTS CITED:

DECISION:
1.The plaintiff’s application to amend the statement of claim is dismissed.
2.The costs of the application are reserved.
3.If there is legislative amendment of the Defamation Act 2005 or an appeal in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 is successful the plaintiff has liberty to restore the matter to the list on three days notice to make a fresh application.

JUDGMENT:

1. This is an application by the plaintiff to amend the statement of claim in order to adopt the contextual imputations pleaded by the defendant.  If the plaintiff is granted leave to amend the statement of claim the plaintiff has foreshadowed that he will move to strike out the defence of contextual truth.

1. The application was heard at the same time as similar applications in the related matter of Ahmed v News Digital Media Pty Ltd and the wholly unrelated matter of Chamma v Channel Seven Sydney Pty Ltd. The application in each case raises the same issue.

1. The proceedings in Ahmed v Nationwide News Limited arose out of an article in the Daily Telegraph on 8 November 2009.  The article was headed “Special report NSW police officers Rogues gallery”.  In Ahmed v News Digital Media Pty Ltd the plaintiff sues the defendant in respect of an article published on the internet on 8 November 2009.  For present purposes the article in the Daily Telegraph and the article published on the internet are indistinguishable.  The plaintiff has in each case pleaded the same imputations.  The defendant in each case has pleaded the same matters by way of defence. 

1. It is convenient to deal with the issues by reference to the pleadings in Ahmed v Nationwide News Pty Ltd although in one respect it is necessary to refer to the pleadings in Chamma v Channel Seven Pty Ltd.  This is dealt with at paragraph 26 below.

1. By a further amended statement of claim the plaintiff pleaded the following imputations:

(a)        The plaintiff is a rogue.
(b)        The plaintiff is one of the most corrupt cops in NSW.
(c)        The plaintiff was convicted of a home-loan mortgage scam.
(d)        The plaintiff is guilty of a home-loan mortgage scam.
(e)        The plaintiff had an improper association with criminals.
(f)         The plaintiff engaged in corrupt activities.

1. In its defence to the amended statement of claim the defendant pleaded a number of defences including a defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (“ the Act”). Section 26 states:

“Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations  ("contextual imputations") that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”

1. The defendant pleaded that the following imputations were substantially true:

(a)        The plaintiff was charged and found guilty of having engaged in fraudulent activities.
(b)        The plaintiff was a person considered by the NSW Police Integrity Commission to           have engaged in such serious police misconduct as to warrant prosecution.

1. The defendant’s opposition to the proposed amendment is founded on the  decision of Simpson J in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 as to the meaning of s 26 of the Act. In Kermode her Honour held that s 26 of the Act provided a defence of contextual truth only where the imputation pleaded by the defendant was “in addition to the defamatory imputation of which the plaintiff complains” and thus did not permit a defence of contextual truth to be raised in relation to imputations pleaded by the plaintiff.

1. At paragraph 41 of the judgment her Honour recognised that the effect of her decision was that in any case where a defence of contextual truth is pleaded the plaintiff can defeat the defence by simply adopting the defendant’s contextual imputation:

“Senior counsel who appeared for the defendants advanced a pragmatic argument against this construction. It was that, in any case where a defence of contextual truth is pleaded by a defendant, a plaintiff may defeat that defence by simply adopting the contextual imputations as imputations of which he or she complains. In doing so, a plaintiff would lose nothing, because, by pleading the imputations as contextual imputations, the defendant has signalled an intention to prove their truth. By adopting (or, put more pejoratively, “appropriating”) the contextual imputations pleaded by the defendant, the plaintiff could deprive the defendant of a defence under s 26. That has, in fact, occurred on at least one occasion: Corby v Channel Seven Sydney Pty Ltd (NSWSC, 20086/2007). Senior counsel’s proposition is correct, but it cannot be allowed to dictate the proper approach to statutory construction.”

1. I pause to observe that while the deprivation of a s 26 defence was not a factor which her Honour considered could dictate the proper approach to statutory construction, in my view, it is a relevant discretionary factor in considering whether or not to permit an amendment.

1. The defendants formally submitted that Kermodewas wrong and should not be followed. The defendant accepted, however, that Kermode was a detailed and careful analysis of the relevant section by a judge of the Supreme Court that was not  ‘obviously wrong’ and, indeed, was strongly persuasive. I propose, therefore, to follow the decision.

Should the plaintiff be granted leave to adopt the defendant’s contextual imputations?

1. The defendant opposed the plaintiff being granted leave to amend the statement of claim to ‘plead back’ the defendant’s contextual imputations because, post-Kermode, the defendant would then be deprived of the defence of contextual truth, the defendant’s contextual imputations no longer being ‘in addition to’ the plaintiff’s imputations.

1. The defendant submitted that to grant leave to amend would amount to an abuse of process because it would be to use a procedural power in a manifestly unfair way and would visit upon the defendant a substantial injustice by depriving it of an existing right: See Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 per Lord Diplock; Walton v Gardiner (1993) 177 CLR 378 at 393-394.

1. The application in Kermode was an application by the plaintiff to strike out the defence of contextual truth. The application before me is an application to amend the statement of claim and a foreshadowed application to strike out the defence if the amendment is permitted. A similar application to amend the statement of claim that was opposed by the defendant on similar grounds to the defendant’s opposition in this case was dealt with by her Honour Judge Gibson in Creighton v Nationwide News Pty Limited (No 2) [2010] NSWDC 192. Her Honour rejected the defendant’s argument and permitted the plaintiff to amend the statement of claim to 'plead back' the defendant’s contextual imputations. Her Honour did not, however, make an order striking out the defendant’s defence of contextual truth “at this time”. At paragraph 76 her Honour said:

“..other events such as the rapid amendment of the legislation or an application to adjourn the hearing pending the enactment of such legislation, are likely to render such a step…unnecessary”.

1. In essence, Her Honour rejected the defendant’s argument for the following reasons:

(i) The entitlement of the plaintiff to plead back imputations is clear [54].

(ii) The circumstances in which the plaintiff’s entitlement to plead back imputations would be struck out as an abuse of process would have to be exceptional [60].

(iii) A litigant cannot be shut out from pleading an otherwise legitimate defence or claim by reason of a change in the law or of judicial interpretation especially when that change is in favour of the party seeking to make the amendment [61].

(iv)       While the analysis of Simpson J in Kermode may be unwelcome to defendants in that it may be deprived of one of its defences that does not mean that the court should refuse to permit the plaintiff to make an amendment which is otherwise a legitimate entitlement of a plaintiff in defamation proceedings [62].

1. I have considered whether I am bound by the principles of judicial comity to follow her Honour’s decision in Creighton. There is no doubt that in relation to statutory construction and the development of the common law certainty, equality, efficiency and the appearance of justice require that like cases be treated alike: see Telstra Corporation Limited v Treloar [2000] FCA 1170 per Branson and Finklestein JJ at [23]. This is particularly so in the interpretation of uniform national legislation: Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485 at 492; Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 587.

1. The present application, however, involves an exercise of discretion to permit an amendment not an exercise in statutory construction or development of the common law. The decision in Creighton to permit the plaintiff to amend was based on the assumption that the plaintiff had an entitlement to plead the defendant’s contextual imputations.  While it might be said that pre-Kermode the plaintiff had a legitimate entitlement to adopt the defendant’s contextual imputations, in my view this cannot be said post-Kermode. I intend, therefore, to adopt a different approach to that taken in Creighton.

1. I do so in the context that the parties sought a determination of this issue. Neither party submitted that I should grant the plaintiff’s application and defer striking out the defence of contextual truth pending legislative amendment of s 26 or the outcome of the appeal in Kermode.

1. It is unnecessary to consider whether the plaintiff’s application amounts to an abuse of process. The plaintiff does not have an entitlement to amend the statement of claim.  The plaintiff can only amend the statement of claim with leave.  The application for leave is to be dealt with in the conventional way by reference to the relevant factors in the particular case including the reasons for the application, the consequences of the amendment, the existence and extent of any prejudice, and whether any prejudice is capable of being cured by an order for costs.

1. Under s 64 (2) of the Civil Procedure Act 2005 the court may order that any document in the proceedings be amended for the purpose of determining the real questions raised by the proceedings. Section 64 is subject to s 58 which requires the court to act in accordance with the dictates of justice. Under s 58(2)(b)(vii), for the purposes of determining what are the dictates of justice the court must have regard to the degree of injustice that would be suffered by the respective parties as a consequence of the order.

1. The consequences of allowing the amendment, or alternatively, of refusing the amendment were adverted to in Creighton at paragraph 59:

" It is still open to the defendants to plead the truth of the imputations, and to rely upon the truth of those imputations to reduce the claim for damages to a nominal sum (as occurred in Ahmadi). What the defendants want to retain is the forensic opportunity of relying upon imputations which it will be able to put to the jury which have not been pleaded by the plaintiffs, and to rely upon the truth of these imputations to “swamp” those of the plaintiffs' imputations for which the defence fails. “

1. As was acknowledged in argument it is not possible to decide this application without visiting a disadvantage upon one party or the other.  If the plaintiff’s application is granted it will deprive the defendant of the defence of contextual truth.  If the application is refused it deprives the plaintiff from being able to rely on the additional imputations said to arise from the publication. 

1. Balancing the various considerations, particularly the degree of injustice that would be suffered by the respective parties, leads me to refuse the plaintiff’s application to amend the statement of claim for the following reasons.

1. First, the defence created by s 26 of the Act is a significant defence which enables the defendant to identify imputations not pleaded by the plaintiff and to use in a cumulative way all the contextual imputations identified against all of the plaintiff’s imputations.

1. Secondly, a significant discretionary factor is that to permit the plaintiff to amend the statement of claim would thereby enable the plaintiff to deprive the defendant of a potentially significant defence. The defendant would be deprived of being able to put into the balance the contextual imputations.  As Her Honour noted in Creighton at paragraph 54 not only is the deprivation of the right to plead contextual truth an unintended legislative consequence but “the result can work injustice to defendants”.

1. Thirdly, in Chamma v Channel Seven Pty Ltd the defendant has pleaded in its defence that each of the plaintiff’s imputations is substantially true.  Although the defendant would still be able to rely on the truth of the imputation to reduce the claim for damages to a nominal sum the plaintiff would nevertheless still be entitled to a judgment and, prima facie, an order for costs in relation to such of the imputations as are not successfully justified or otherwise defended.

1. In Ahmed v Nationwide News Pty Ltd and Ahmed v News Digital Media Pty Ltd each defendant has pleaded that only some of the plaintiff’s imputations are substantially true.  The defendants have not raised the defence of justification under s 25 of the Act in relation to imputation (c), “the plaintiff was convicted of a home loan mortgage scam” and (e) “the plaintiff had an improper association with criminals”.  Absent the defence of contextual truth the plaintiff would be entitled to a judgment in respect of those two imputations if they were not otherwise successfully defended. 

1. Fourthly, the effect of this decision will be to require those acting for a plaintiff to give careful consideration from the outset to the imputations said to arise and of which the plaintiff complains and to plead those imputations.  Such an outcome is consistent with the comments of Allsop P in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 at [38].

1. I was asked by the parties to reserve the question of costs. I make the following orders:

1.The plaintiff’s application to amend the statement of claim is dismissed.

2.          The costs of the application are reserved.

3.If there is legislative amendment of the Defamation Act 2005 or an appeal in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 is successful the plaintiff has liberty to restore the matter to the list on three days notice to make a fresh application.

LAST UPDATED:
29 November 2010