Barrow v Bolt (Ruling No 3)
[2014] VSC 16
•7 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 02412 of 2012
| DAVID CHARLES BARROW | Plaintiff |
| v | |
| ANDREW BOLT | First Defendant |
| HERALD & WEEKLY TIMES PTY LTD | Second Defendant |
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JUDGE: | DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2014 | |
DATE OF RULING: | 7 February 2014 | |
CASE MAY BE CITED AS: | Barrow v Bolt & Anor (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 16 | |
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Practice and Procedure - Appeal from associate judge – Pleadings – Defamation –Particulars of malice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr S Mukerjea | Kelly Hazell Quill Lawyers |
HIS HONOUR:
The plaintiff appeals from parts of the order of Daly AsJ on 26 November 2013, by which her Honour refused the plaintiff leave, in effect, to:
(a)amend his Further Amended Reply to include paragraph (e)(i) of the particulars to paragraph 2;
(b)amend his Further Amended Reply and his Amended Statement of Claim to include the words “writing to Mr Bolt or” in paragraph (e)(iii) of the particulars to paragraph 2 (of the Reply) and paragraph (c)(ii) to the particulars to paragraph 14 (of the statement of claim);
(c)amend his Further Amended Reply to include a new paragraph 2E;
(e)administer the interrogatories numbered 4 and 5(b), annexed to the plaintiff’s summons filed 11 November 2013.
By his Notice of Appeal, the plaintiff contends for 5 grounds of appeal, which seek to overturn each of the matters on which her Honour refused the plaintiff leave and to reinstate, as matters raised on the pleadings, the specific issues that were ruled impermissible.
Each contention concerns either leave to amend a pleading in specific respects or leave to administer an interrogatory. As such, each ground of appeal involves review of an exercise of discretion by the associate judge on a matter of practice and procedure. Tight restraint on appeal from the exercise of discretion in matters of practice and procedure is necessary for the proper administration of justice. For, as Jordan CJ said in Re Will of Gilbert (dec'd)[1]:
The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercise of discretion in interlocutory applications from a Judge to a Court of Appeal.
[1](1946) 46 SR (NSW) 318, at 323, quoted with approval in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177.
I do not suggest that Mr Barrow has a long purse. The evidence is to the contrary. Courts have observed that appellate restraint in the review of a matter of practice and procedure may be especially desirable if under case management arrangements the same judge has charge of all interlocutory steps and, perhaps, its trial, for then the judge may have a better perspective of the whole litigation than the appeal court.[2]
[2]Bank of New Zealand v Spedley Securities Ltd (in liq) & Anor (1992) 27 NSWLR 91 at 95. See also Squire v Rogers 39 FLR 106 at 113–14 (FCA); Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 (FCA); Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 390–1.
The associate judge is managing this proceeding. Her Honour has the benefit of familiarity with prior contested interlocutory applications. It is proper to accord to the associate judge the expertise that she has gained in managing this proceeding to date. Mr Barrow declined my invitation to bring the proceeding into the Major Torts list for case management, preferring that it stay with the associate judge. It is not in the interests of the court in its allocation of resources, or of the parties in terms of the overarching purposes of the litigation, that the opportunity to have every case management decision made by the associate judge reviewed by a judge. This is the second occasion of such a review.
Further, for reasons I will later explain, the primary decision on the application for pleading amendments will not significantly confine the issues to be explored at trial. Rather, it will confine the conduct of this litigation to relevant issues. Exercising restraint in the review of the discretion of a primary judge, who is the case manager, on matters of procedure in the preparation of this proceeding for trial may expedite the final resolution of the dispute, reduce costs and save judicial time. These considerations will ordinarily prevail in the absence of specific error in the exercise of the discretion in appeals seeking fine adjustments to particulars of pleadings.
To understand the context of the debate, I will briefly state the plaintiff’s complaint that he was defamed. The plaintiff complained to the Australian Press Council about a ‘blog’ published by the first defendant, Mr Bolt, on 29 September 2011, entitled, “The grim rise of the media-ocracy.” In that blog, Mr Bolt re-produced part of an article from The Australian newspaper earlier that day, in which certain comments were attributed to Professor Robert Manne. The plaintiff complained to the Press Council that Mr Bolt’s blog was not accurate, fair or balanced, because it failed to incorporate, either originally or by way of update, Professor Manne’s response to the article in The Australian, published by it on 1 October 2011, to the effect that he had been misquoted by The Australian.
When the defendants responded to the plaintiff’s complaint, they did so by an email first drafted by Mr Bolt (the Bolt Response, as defined in the plaintiff’s statement of claim). Mr Bolt forwarded the Bolt Response to Mr Armsden, who at the time was a fellow employee of the second defendant. Mr Armsden forwarded the Bolt Response to Mr Jack Herman at the Press Council. The plaintiff alleges that the Bolt Response defamed him.
The alleged publication is of a single email to Mr Armsden and Mr Herman.
Beyond their denials, the defendants plead qualified privilege at common law, triviality under s 33 of the Defamation Act 2005 (Vic), and an ‘offer to make amends’ defence under s 18(1) of the Act. In reply, the plaintiff contends that qualified privilege is not maintainable because the publication of the Bolt Response was actuated by malice. The plaintiff alleges that Mr Bolt’s malice was manifest by an improper dominant purpose - his desire to injure Mr Barrow and, by doing so, avoid improper professional scrutiny by the Press Council.
There have been earlier applications, and an appeal, in connection with the pleadings in this proceeding.[3] It is in the particulars that have been provided of that malice that the issue raised on this appeal lies.
[3]Barrow v Bolt & Anor [2013] VSC 226 (6 May 2013).
It is important to note that the pleading for which leave was granted continues to allege malice, particularised in a number of different ways that I need not presently describe. The issues for trial broadly have not been constrained by the primary judge, rather, the particulars of those allegations have been confined.
Relevantly to the present debate, Mr Barrow alleges that malice is to be inferred from the following matters. In the Bolt response, Mr Bolt made two statements:
Had Mr Barrow written a comment on my blog, it would almost certainly have been published. We maintain the debate.
and
He [Mr Barrow] had better opportunities to correct the record and chose not to take them.
Mr Barrow alleges that the better opportunities that Mr Bolt was referring to were to either write to Mr Bolt or to submit a comment to the Andrew Bolt blog.
Mr Barrow alleges that, when making the Bolt response, Mr Bolt knew or deliberately refrained from knowing that these two statements were false. This is a rolled-up allegation of two states of mind constituting an allegation of malice: either Mr Bolt had knowledge of the falsity of his statements or he deliberately refrained from knowing that they were false.
In the pleading, four alternative iterations of this allegation of malice and the state of Mr Bolt’s knowledge are then set out. The associate judge refused leave to amend the pleading by including two of those iterations in their original form. The first iteration, which was wholly disallowed, read:
Mr Bolt had not read, or did know if he had read, all the written communications that Mr Bolt had received from Mr Barrow between 25 March 2011 and making the 27 February 2012 Bolt response. It is the practice and policy of the second defendant that all material submitted to it by members of the public is read before it may be published. Mr Bolt complies with this policy and practice. In the circumstances, any challenge to the Bolt article that Mr Barrow may have made by writing to Mr Bolt would not “almost certainly have been published”. Further particulars of the written communications that Mr Bolt received from Mr Barrow are attached as Schedule A.
The associate judge ruled that this particular was impermissibly speculative and could not establish that Mr Bolt knew or deliberately refrained from knowing of the falsity of the two statements.
The second alternative iteration of the particulars of malice was in part disallowed. It stated:
(iii) Further, or in the alternative, between 25 March 2011 and 14 November 2011 Mr Barrow brought to the direct attention of Mr Bolt via email instances of comments that Mr Barrow had submitted to the Andrew Bolt blog that were not published on line. In the circumstances any challenge to the Bolt article that Mr Barrow may have made by
writing to Mr Bolt orsubmitting a comment to the Andrew Bolt blog would not “almost certainly have been published”.
The words struck out were disallowed by the associate judge where they appear in paragraph (c)(ii) with the particulars to paragraph 14 of the proposed further amended statement of claim and in the particulars to paragraph 2 of the proposed second further amended reply. The associate judge ruled that those words impermissibly expanded the boundaries of the real issues in dispute and in any event, lacked logical force. By grounds 1 and 2 of the notice of appeal, Mr Barrow contends that her Honour was in error in such findings.
Paragraph 2(e)(i) - Ground 2
Mr Barrow submitted that this amendment was erroneously disallowed because the sheer volume of the 75 communications referred to in Schedule A to the proposed amended Reply provided a proper basis for an inference that at the time Mr Bolt made the Bolt response he had not read, or did not know if he had read, the totality of all of these communications. He submitted that if there is a natural tendency for Mr Bolt not to read all matters, or know if he had read all matters, then, where all published matters must first be read, it is false to say that that the better opportunities to which Mr Bolt refers (letters or blog comments) would almost certainly have been published.
The information contained in Schedule A does not suggest that any of these communications either concerns the Bolt Article or might establish directly Mr Bolt’s knowledge concerning the falsity of the two statements. Rather, Mr Barrow contended that it was open to the court to infer from the sheer volume of the communications – 75 emails or documents of 2,357 pages in total - that Mr Bolt did not read, or remember that he had read that material. The proposition that this statement was speculative, as the primary judge ruled, was confirmed when I asked Mr Barrow why it was not speculative. He informed me that he proposed to take the somewhat unusual step of calling Mr Bolt as one of his witnesses. Plainly, he has no proof of Mr Bolt’s evidence and no proper basis for anticipating any such admission. Although representing himself Mr Barrow is admitted to practice as a lawyer and it is a fundamental proposition that any lawyer understands that a party cannot cross-examine his own witnesses, absent special circumstances. Plainly, this is an allegation that Mr Barrow hopes he can prove and which he cannot particularise.
In any event, I do not accept that what Mr Barrow called the sheer volume of the communications would, of itself, permit a probable inference that Mr Bolt had not read all the written communications. Nor am I satisfied that if Mr Bolt had not read any of those written communications it was reasonably open to the trial court to then infer that the statement that “had Mr Barrow written a comment on my blog, it would almost certainly have been published” was knowingly false. When Mr Barrow’s particulars set out how the latter inference is to be drawn, there is an impermissible slide from particularising the knowledge of Mr Bolt to particularising the knowledge of the second defendant. The fact that the second defendant as a matter of practice reads all submitted material before it is published on a blog does not require that it be read by Mr Bolt. It was not in dispute that Mr Bolt was not the sole moderator of comments to the blog. Expressing a view about whether a comment to the blog will be published may be based on knowledge of the moderation process rather than knowledge of the content of the comment.
In his submission, Mr Barrow relied on a passage from the affidavit of Justin Quill, sworn 26 July 2013 and filed on behalf of the second defendant, in which Mr Quill deposed:
I am informed by Mr Schaefer that the second defendant ‘moderates’ on line blogs as a matter of practice. Moderation is a process by which contributions from members of the public are reviewed by a staff member of the second defendant prior to being published. After a contribution is reviewed, the moderator makes a decision whether or not to publish the contribution so that it can be viewed by members of the public.
The plaintiff accepted Mr Quill’s description of the moderation practice. He also accepted that his particulars left open that Mr Bolt may have read some, or perhaps even most, of the correspondence.
These particulars draw on the speculative premise that Mr Bolt had not read any of the 75 emails, which cover a range of matters and are entirely unrelated to the question of whether Mr Bolt would have read and then published a comment or letter about an article on his blog which misquoted Professor Manne. Mr Barrow reasons that if all correspondence is not read by Mr Bolt, any letter or comment he might have sent as an alternative to a Press Council complaint would never have been read. The reasoning is that it must then follow that Mr Bolt’s observations that a comment on his blog would almost certainly have been published was a knowingly false statement used to maliciously characterise Mr Barrow as a vexatious complainant.
In my view, this reasoning is flawed. In the first place, none of the communications referred to in the schedule constitute a comment written on Mr Bolt’s blog. They are direct communications between Mr Bolt and Mr Barrow. Whether those communications have been read is not relevant to an inquiry into whether a comment from Mr Barrow about the Bolt article would have been published on the blog, because they are communications of a different nature. Secondly, as Mr Quill makes clear, moderation of comments to be posted on a blog is undertaken by ‘a staff member of the second defendant’. Mr Barrow accepts that whether moderated comments are published on the blog does not depend on whether Mr Bolt read them.
The impugned paragraph discloses no proper basis for an inference of malice.[4] The circumstances particularised appear equally consistent with an absence of malice and no basis upon which malice could rationally be inferred is set out. Further, I do not consider that it is open to a trial court to find that because of the ‘volume’ of the communications, as Mr Barrow describes them, it can be inferred that the first defendant did not read or review them. Having regard to moderation procedure, other inferences about the basis for Mr Bolt’s certainty that a comment would be published, inconsistent with malice, are plainly open.
[4]See generally - Rule 13.10(3)(b), Mann v Board of Health of ACT, Bissett, Withers, Clarke, O’Donnell & Hurley (1996) 67 FCR 383; Duffield v Arts Council of South Australia Inc & Fox Publishing Co Ltd (1981) 27 SASR 540; NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585; Gross v Weston and Anor (2007) 69 NSWLR 279 at [32-33]; Hughes v Risbridger & Anor [2009] EWHC 3244 (QB) at [14-16]; Ibrahim v Swansea University [2012] EWHC 290 (QB) at [19–20].
For these reasons, I am satisfied that the associate judge did not err in refusing the plaintiff leave to serve amended pleadings containing the statement at particular (e)(i) of paragraph (2) of the second further amended reply dated 11 November 2013.
Paragraph 2(e)(iii) - Ground 1
Mr Barrow contended that these particulars demonstrated the basis upon which he would establish Mr Bolt’s tendency not to publish comments submitted to the Andrew Bolt blog. He contended that the falsity of the relevant statement could be inferred not just from Mr Bolt’s tendency not to publish comments on other topics submitted to the blog by Mr Barrow but also from his failure to publish any challenge that may have been made in writing by a letter or email. He contended that the communications referred to in the Bolt response included both blog comments and letters.
The associate judge was correct to confine this allegation by deleting some words from the proposed particulars when regard is had to the context of the alleged false statement. The diversion from comment to letters in this sub-paragraph of the particulars impermissibly expands the case away from blog comment to emails and letters generally. The statement that is alleged to be maliciously false is not a statement about the certainty of publication of any private correspondence between the two men. It is “had Mr Barrow written a comment on my blog, it would almost certainly have been published”. The later reference to Mr Barrow’s options to contribute to the debate by contributing a letter or a blog comment is, in the whole of the context of the Bolt response, incapable of supporting a conclusion that a letter from Mr Barrow, as opposed to a letter from Professor Manne, would almost certainly have been published. Further, the particularised history of communications concerns comments submitted to the blog rather than letters of complaint.
Moreover, as a more general observation applicable to both grounds, the particulars tend to divert attention from the real issue which flows from Mr Barrow’s specific complaint to the Press Council about the Bolt article and Mr Bolt’s response. Rather, attention is focussed on numerous other complaints that Mr Barrow has made in the past. The communications about these other matters are not probative on the question of whether Mr Bolt would, had he read an email from Mr Barrow seeking to clarify Professor Manne's position in relation to the article that had been published in The Australian, have then published the substance of that email as a comment on the blog. This court need not explore the history of the complaint relationship between Mr Barrow and the defendants. Pleadings, especially particulars, define the relationship between material facts and relevant evidence. The ruling of the primary judge on these grounds in my view furthers the just, efficient, timely and cost effective resolution of the real issues in dispute in the proceeding.
Paragraph 2E - Ground 3
Ground 3 of the notice of appeal challenged her Honour’s refusal of leave to rely on paragraph 2E of the proposed reply. This paragraph made an alternative allegation that the qualified privilege defence is not maintainable because the publication of the Bolt response was actuated by malice of a different form. The paragraph alleges that Mr Bolt had an improper dominant purpose of a desire to injure Mr Barrow in retaliation for submissions Mr Barrow had made to the 2011 Independent Inquiry into the Media and Media Regulation. Copies of the submissions were sent to Mr Bolt. The submission identified what Mr Barrow characterises as ‘significant defamation exposures’ arising from the moderation practices at News Ltd blogs including the Andrew Bolt blog. The particulars of this allegation are limited to identifying the relevant submissions. There were no particulars given of the state of mind of Mr Bolt and his motive for revenge against Mr Barrow that characterises that state of mind as malice.
No basis upon which a court could infer that motive is evident. It is baldly asserted. In as much as I could follow his submissions on this ground, Mr Barrow contended that his submission to the Inquiry expressed his opinion that the defendants faced significant exposure to damages in defamation proceedings against them arising from the moderation practices at News Ltd. After Mr Bolt received the submissions, Mr Barrow submitted that in his blog Mr Bolt bemoaned that his blog had become bogged down in moderating comments to avoid legal disputes. Mr Barrow contended that because he had provided a copy of his submissions to Mr Bolt that clogged his blog and uncovered the extent that he had exposed his employer to loss, Mr Bolt desired to injure Mr Barrow in retaliation for those submissions and that was the dominant purpose of his statements in the Bolt response. The assertion that Mr Bolt was actuated by such a motive is speculative. The defendants submitted that the particular blog comment, which would be evidence of moderation clogging, referred to past moderation delays. Beyond the co-incidence of timing there is no connection pleaded, nor was it submitted that a connection could be pleaded, between the receipt of the submissions and that blog comment.
There was no error made by the associate judge when refusing leave to re-plead by a reply containing paragraph 2E.
Other submissions
Mr Barrow referred me to the Hilary Rules, reminding me of what Hutley JA said in Hepburn v TCN Channel Nine Pty Ltd[5] -
The law of defamation is one of the shields that the citizen has against excesses by the media. To be effective for this purpose, the hearing of the complaint should follow closely after the event. Moreover, I do not consider a court should disregard the fact that in most defamation proceedings against the media, there is an enormous disparity of resources and specialised legal skill (though the appellant has not suffered from the lack of the latter in this case). It behoves the courts to smooth the way of the plaintiff to the tribunal chosen by the legislature, the jury, and not permit the rules of pleading to be used as a means of obstructing this result. The search for excessive precision in pleading has to be restrained and the sad history of the Hilary Rules never forgotten: Holdsworth, History of English Law, vol IX, at 325.
[5][1983] 2 NSWLR 682 at 692.
Mr Barrow also emphasised that the key battleground in the proceeding is the plaintiff's rebuttal burden to defeat the defence of qualified privilege by proving malice. He submitted that he should be given ever reasonable opportunity to prove malice given the high stakes consequences to him of losing the case. He identified these ‘high stakes’ as following on the disparity of resources between the parties, the impact of adverse costs orders on his financial circumstances,[6] significant media interest in the trial, the implications for the restoration of his damaged reputation and the prospect that damages may be substantial.
[6]Mr Barrow contends that bankruptcy will follow for him should his proceeding fail with negative consequences for his ability to practice as an accountant or as a lawyer.
I did not perceive that the disparity of resources between the parties affected Mr Barrow’s capacity to present his appeal and, more generally, to plead his claim. I had regard to that matter, as directed by s 9(2)(h) of the Civil Procedure Act, 2012 (Vic). The remaining assertions are not presently relevant, and are not matters to which s 9 of the Civil Procedure Act directs my attention. More importantly, I add that the allegation that Mr Bolt did not believe in the truth of his statements, which is the strongest possible evidence of malice,[7] remains in issue in the proceeding on the third further amended reply, dated 3 December 2013 that was filed after the ruling under appeal. Also remaining in issue on the current pleading are questions of whether Mr Bolt’s motivation was a desire to injure Mr Barrow in response to different aspects of the latter’s conduct against Mr Bolt, which may be evidence of a lack of genuine belief in the truth of the two statements. The effect of the associate judge’s ruling was to correctly confine such allegations to those that are relevant, properly pleaded, and capable of demonstrating malice. In that respect, the ruling below, while, in my respectful view, being correct in law also furthers the achievement of the overarching purpose under the Civil Procedure Act. Mr Barrow’s ‘high stakes’ concerns are mostly irrelevant to this application although they are considerations upon which he might profitably reflect deeply and with care as the proceeding progresses to trial.
[7]See Cheng v Tse Wai Chun [2000] 3 HKLRD 418, at [74].
Grounds 4 & 5 - interrogatories
The remaining two grounds of the appeal concern interrogatories which were disallowed. In each case I am satisfied that the associate judge correctly characterised those interrogatories as irrelevant and properly refused leave to administer them.
Interrogatory 4 is concerned with the defendant’s offer to make amends defence. By his reply, Mr Barrow alleges that this defence is not open as the offer of amends was made more than 28 days after the defendants were given a concerns notice.[8] In support of this defence, Mr Barrow apparently desires to establish that a concerns notice was first given to the defendants on 3 March 2012, more than 28 days prior to the offer of amends. Whether the concerns notice was received on that date is a relevant fact but that is not the subject of inquiry by the proposed interrogatory. The interrogatory enquires as to whether a copy of the concerns notice dated 3 March 2012 was sent to the Press Council. That question is not in issue between the parties in this proceeding.
[8]See s 14 Defamation Act, 2005 (Vic).
Interrogatory 5(b) enquires about whether comments uploaded to the Andrew Bolt blog were deleted or are capable of being deleted. Again, there is no issue between the parties to this proceeding about that matter.
Conclusions
The appeal will be dismissed with costs. Costs will follow the event as I was informed by the parties that there are no particular circumstances that might persuade me to exercise my discretion as to costs differently. However, two particular issues were raised about costs in respect of which I will reserve liberty to apply. First, it has been the practice in this proceeding that the quantum of the costs of the successful party should be fixed. I expect the parties to use reasonable endeavours to settle the quantum of costs before exercising liberty to apply. Secondly, I am informed that on prior occasions the court has ordered that although costs were fixed rather than taxed, payment of those costs was stayed until the completion of the proceeding.[9] I also reserve liberty to the defendants to apply for an order that the costs of the appeal may be taxed or if fixed, be recovered immediately, should they be advised to do so. If pursued, these applications can be made to the managing associate judge.
[9]Barrow v Bolt & Anor (No 2) [2013] VSC 234 (7 May 2013).
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