Allen v Townsley

[1991] TASSC 172

Serial No B58/1991
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Allen v Townsley [1991] TASSC 172; B58/1991

PARTIES:  ALLEN, Geoffrey David
  v
  TOWNSLEY, Wilfred Asquith

FILE NO:  840A/1984
DELIVERED ON:  8 October 1991
JUDGMENT OF:  Slicer J
CATCHWORDS:

Practice and Procedure—Pleadings—Order 28, rr2 and 4.

Judgment Number:  B58/1991
Number of paragraphs:  12

Serial No B58/1991
File No 840A/1984

GEOFFREY DAVID ALLEN & ANOR
v WILFRED ASQUITH TOWNSLEY & ORS

REASONS FOR JUDGMENT  SLICER J

(Oral Ruling)  8 October 1991

1. Paragraph 12 of the amended defence pleads that the defendants, by virtue of their appointment under the Consumer Affairs Act 1970, are entitled to conduct investigations into certain matters provided for by the legislation. That authority is pleaded in order to bring into effect the operation of privilege as provided by s12 of the Defamation Act. The amended defence refers specifically to s12 of the Defamation Act which provides:

"A person who is appointed under the authority of the Act, or by or under the authority of Her Majesty or the Government to hold an inquiry does not incur any liability as for defamation by publishing defamatory matter in an official report made by him of the result of the inquiry."

1. The plaintiffs submit that, consistent with the line of reasoning as set out in a decision of the Full Court of the Supreme Court of Queensland in the case of Wishart v Doyle [1927] Qd R 269, that an investigation such as that authorised by the Consumer Affairs Act can never, as a matter of law, amount to an inquiry and could never attract the absolute privilege afforded by s12. The argument is not dependent upon any specific interpretation or comparison of the words "inquiry" and "investigation". As counsel for the plaintiffs pointed out in the course of his submissions, the position would be the same if the defendants amended the defence to include or substitute the word "inquiry" in place of or alongside of the existing word "investigations". It is the statutory scheme provided for by the Consumer Affairs Act which is determinative of the point of law.

1. It is an attractive proposition.

1. Counsel for the plaintiffs however, sought the application of O28, r2, and in the alternative, O28, r4. The contention was that on the raising of the point of law it shall be disposed of by the trial judge and counsel for the plaintiffs seeks a determination of the issue at this stage, namely during his opening address. The plaintiffs had not raised the point in their pleadings and contend that it is not incumbent on them to so do. The defendants claim prejudice in that they have been afforded no notice of the point taken and would seek an adjournment to prepare argument on the substantive point if the matter is to be determined at this stage of the proceedings.

1. Order 28, r2 is contained within the provisions entitled "Proceedings in Lieu of Demurrer". Rule 1 abolished the demurrer which was required to be specifically pleaded. Rule 2, its replacement, has three components:

–        any party shall be entitled to raise by his pleadings any point of law;

–        such point shall be disposed of by the trial judge at or after the trial;

–        with the consent of the parties the point can be determined at a preliminary hearing.

If the point is upheld, the Court is entitled, by virtue of r3, to dismiss the action, or make an order striking out a ground of defence. Order 28 is in terms similar to the provisions contained in O25 of the Victorian Rules. In my opinion, r2 of O28, enables a demurrer in the old sense of the term to be raised on a question of law. But it must be raised by the party on his own pleading. In this case the pleadings were closed by the delivery of the defence. (See O30, r13). To hold otherwise would be to read r2 as, "Any party shall be entitled to raise by any pleading". In this case the point of law does not appear in any pleading. It may arise out of a pleading, but it is not raised by pleading.

1. As was stated by Green LJ in Marchant v Ford [1926] 2 All ER 1510 at p1512:

"... Demurrers have been abolished, and the only substitute for a demurrer under the Judicature Act and Rules is to take out a summons for the determination of a preliminary question of law or of fact ...".

That is the procedure adopted by the Victorian Supreme Court when dealing with its equivalent rule. See Gibbs v Howden (1884) 16 VLR 269, such procedures being continued until the present day. See National Mutual Fire Insurance Company Ltd. V Insurance Commissioners [1985] VR 811, a case where the determination of the summons was referred to the Full Court by the trial judge.

1. A case where the question of an absolute case of privilege arising out of an alleged libellous communication contained in a report by the High Commission to the Prime Minister of Australia was dealt with by way of a determination on the basis of pleadings in the form of a summons is Isaacs & Sons Limited v Cook [1925] 2 KBD 391. Williams, Supreme Court Practice at par25.2.3. states:

"Rule 2 [referring to the Victorian equivalent rule] merely provides that if a party intends to apply for the preliminary determination of a point of law he must raise it in his pleading";

and provides for the form of pleading in par25.2.2 by reference to Appendix E, sIII.

1. Thus, if the plaintiffs seek to have the matter determined at this stage of the proceedings, then there must have been raised by the plaintiffs the question of law to be determined in their pleadings.

1. The above does not of course preclude the plaintiffs from relying on the propositions as part of the overall case.

1. If I am wrong as to the above I would in any event exercise discretion to determine the matter at the conclusion of the evidence. That course is open to me on the wording of r2 itself. I am conscious of the procedural and tactical advantage to the plaintiffs if I were to make my determination now, but I base my exercise of discretion on comments of Buckley J in Independent Automatic Sales Ltd v Knowles and Foster [1962] 3 All ER 27. In doing so, I note that his Honour was dealing with the proposition that the whole of the action could be disposed of by the determination of the preliminary point of law. That is not the case here. His Honour said at p30:

"When there is a substantive point of law which may dispose of the whole action, it is not a convenient course to be followed normally that no mention should be made of the point of law in the pleading, because, if no mention is made in the pleading, the other side may be lulled into a false sense of security in that particular respect, and may very probably appear before the court less ready and able to argue what may be a difficult matter."

1. The plaintiffs also sought to rely on the provision of r4. But that requires a finding that par12 discloses no reasonable answer. In other words, I would be obliged to find it to be unreasonable. I have said that I find the plaintiffs' submission attractive but it does not follow that I am prepared at this stage of the proceedings to find the answer to lack reasonableness. In any event, under r4, the only option that is open to the Court would be to stay the proceedings or enter judgment (I could hardly dismiss the action). I could not enter judgment even if par12 were not pleaded and to stay the proceedings would not be in the interests of any of the parties, least of all the plaintiffs.

1. For the above reasons the issues raised by par12 of the amended defence will remain a properly pleaded and live issue during the course of the hearing.