Barrow v McLernon & Anor
[2012] VSC 134
•12 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. S CI 2011 03444
| DAVID CHARLES BARROW | Plaintiff |
| v | |
| HUGH McLERNON IMF (AUSTRALIA) LIMITED | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2012 | |
DATE OF JUDGMENT: | 12 April 2012 | |
CASE MAY BE CITED AS: | Barrow v McLernon & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 134 | |
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PRACTICE AND PROCEDURE – Appeal from Associate Judge – Discovery – Home Office v Harman [1983] 1 AC 280 – Application to use discovered documents in subsequent proceedings – Ability to use discovered documents to amend pleadings – Civil Procedure Act 2010, ss 26 and 27 – Defamation Act 2005, s 35.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr S.A. O’Meara SC with Mr J.H. Kirkwood | Arnold Bloch Leibler |
HIS HONOUR:
Introduction
In this proceeding, David Charles Barrow, the plaintiff, who describes himself as “a professional accountant member of CPA Australia” and “enrolled as a Juris Doctor law student at RMIT University”[1] sues Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments. Mr McLernon, the first defendant, is and was at all relevant times the managing director of IMF (Australia) Limited, the second defendant.
[1]See paragraph 1 of the plaintiff’s amended statement of claim.
Pursuant to their obligations under s 26 of the Civil Procedure Act 2010 and an order for discovery made in this proceeding, the defendants have given inspection of documents in their possession, custody or control relevant to the issues in this proceeding. The plaintiff now wishes to use some of these documents to issue other proceedings claiming damages for defamation. Specifically, by summons filed 8 December 2011, the plaintiff sought orders as follows:
“1.The Plaintiff is granted leave to use in other proceedings, limited to causes of action available to the plaintiff under the Defamation Act 2005 (Vic) (the Defamation Act), including to found the issuing of Notices of Concern by the Plaintiff to defendants pursuant to Part 3 of the Defamation Act, these documents discovered by the Defendants to the Plaintiff on 30 November 2011 with Document ID:
HMC.001.001.0073
HMC.001.001.0073_01
2.The Plaintiff is granted leave to use in other proceedings, limited to causes of action available to the Plaintiff under the Defamation Act, including to found the issuing of Notices of Concern by the Plaintiff to defendants pursuant to Part 3 of the Defamation Act, these documents that were said to be in the possession, custody or control of the Defendants when provided to the Plaintiff on 23 September 2011 in compliance with section 26 of the Civil Procedure Act 2010 (Vic), and discovered to the Defendants in the Plaintiff’s Amended List of Documents dated 5 December 2011 with Document ID:
BAR.132
BAR.133
BAR.134
BAR.135”
On 1 February 2012, the plaintiff’s application was heard before Zammit AsJ. On 24 February 2012, her Honour dismissed the plaintiff’s application. On 2 March 2012, the plaintiff filed and served a notice of appeal pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005. This is the hearing of the plaintiff’s appeal. The appeal is a re-hearing de novo.[2] Before proceeding further, it is necessary to refer briefly to the pleadings.
[2]Rule 77.06(7).
The pleadings
In paragraph 5 of his amended statement of claim, the plaintiff pleads that the email with its two pdf attachments, was published to the plaintiff and the Market & Participant Supervision Team of the Australian Securities and Investments Commission. It is also alleged that the email and its attachments were copied to an investigative journalist (Mr Rafael Epstein) at The Age newspaper. The relevant part of the publication in respect of which complaint is made (defined as “the McLernon comments”) is in the following terms:
“In relation to this final paragraph of yours I refute what you say about your motivation. You have been careful not to make any direct accusations – you have hidden your barbs under the cover of terms like ‘I wonder’ and ‘I can’t understand’ but, once known, your history betrays you – you have not disclosed your own involvement in the Bank Fee area, nor your numerous approaches to us all of which were rebuffed or your trenchant criticism of our 25% commission on your website once you saw we would not co-operate with you. You tried to hide your close knowledge of the documents used in our funding arrangements while querying whether we mislead the market about the binding nature of those funding arrangements. But the real give away is the fact that you sent your email to the media before waiting for a reply – in fact you sent the email to the Age before you even sent it to us – you are clearly not interested in our response only in what damage you might do to us if you can get your questions published preferably without our responses and no doubt with the added twist that the matter is being ‘investigated’ by ASIC.”
The reference to the “final paragraph of yours” is a reference to the final paragraph of a document defined as “the Barrow letter”, a letter apparently sent by the plaintiff on 27 May 2011 to the Chairman of the second defendant and to ASIC. The final paragraph of the Barrow letter provides:
“Mr Ferguson, as I said at the outset, I have written this letter in the hope that you might provide reassurance to the market that there has not been a recent non-disclosure (omission) by IMF (Australia) Limited of market-sensitive information concerning the Bank Fees Class Action, and if there has been any such failure, that this has not also led to a situation of insider trading by directors of the company.”
Whilst the defendants admit the content of the final paragraph of the Barrow letter, in their defence they plead that the extracted paragraph includes the bolded terms “non-disclosure”, “IMF (Australia) Limited”, “Bank Fees Class Action” and “insider trading”.
In paragraph 11 of the plaintiff’s amended statement of claim, two imputations are pleaded:
“(a)Mr Barrow disingenuously criticised IMF on a website that Mr Barrow managed only because IMF would not cooperate with Mr Barrow in his involvement in the Bank Fee area of actions.
(b)[An earlier imputation has been deleted]
(c)Mr Barrow was involved in conduct with the primary purpose of maliciously damaging IMF by sending questions to the media so as to get those questions published before IMF could answer those questions.”
Whilst various admissions are made by the defendants concerning the documents alleged in the plaintiff’s amended statement of claim, the imputations pleaded by the plaintiff are denied. The defendants plead defences of justification, qualified privilege on the basis of reply to an attack and qualified privilege based on reciprocity of duty and interest. As part of their truth defences, the defendants plead as true the following imputations:
“(a)The plaintiff sent a letter to ASIC and Mr Epstein of The Age newspaper that inappropriately failed to disclose his past involvement in bank fees litigation, his past approaches to IMF and his close knowledge and criticism of IMF’s fees after it was apparent that IMF would not cooperate with him.
(b)The plaintiff sent a letter to the media with a view to damaging IMF in widespread publicity before it could have a chance to respond.”
In his further amended reply,[3] the plaintiff pleads, amongst other things, malice. The reply contains allegations of an “improper dominant purpose of a desire to injure Mr Barrow” and that matters published by the defendants “were not relevant, germane or sufficiently connected with the subject of issues raised by Mr Barrow in the Barrow letter”.
[3]Which runs to some 52 pages, together with more than 80 pages of attachments.
The hearing before Zammit AsJ
At the hearing before Zammit AsJ, the plaintiff relied upon two affidavits: an affidavit affirmed by the plaintiff on 9 December 2011 and an affidavit affirmed by the plaintiff on 9 January 2012. The exhibits to the affidavit of 9 December 2011 ran to some 514 pages.
In response to the plaintiff’s material, the defendants relied upon two affidavits from their solicitors: an affidavit from Teresa Ward affirmed 11 December 2011 and an affidavit from Matthew David Lees sworn 24 January 2012.
The application was heard by Zammit AsJ on 1 February 2012. On 24 February 2012, her Honour delivered detailed and considered reasons dismissing the plaintiff’s application. As this is a re-hearing de novo, it is not necessary for me to discuss further the hearing before her Honour or her Honour’s reasons. However, it should be said that if this appeal had been an appeal by way of re-hearing, rather than by way of re-hearing de novo, considerably less time and expense may have been involved in the determination of the appeal.
The relevant discovered documents
The six documents in respect of which the plaintiff seeks to be relieved from his Home Office v Harman[4] undertaking (referred to by the parties as “the summons documents”) are contained in Exhibits DCB11, DCB12, DCB15, DCB16, DCB17 and DCB18 to the affidavit of the plaintiff affirmed 9 December 2011. Exhibits DCB11 and DCB12 are the two documents referred to in paragraph 1 of the plaintiff’s summons. These documents were discovered by the defendants to the plaintiff on 30 November 2011. Exhibits DCB15, DCB16, DCB17 and DCB18 are the four documents referred to in paragraph 2 of the plaintiff’s summons. These documents were discovered by the defendants to the plaintiff on 5 December 2011.
[4][1983] 1 AC 280.
Part of each of Exhibits DCB12, DCB15, DCB16, DCB17 and DCB18 is an email originally sent on 1 June 2010 at 12.11pm. The subject line of this email is “FW: Barrow v HSBC; Barrow v CBA”. Under the subject line, the following appears (as typed):
“Clive/Wayne I think Byrnes is mixed up with Barrow through the brisconnect matter he is in any event a dangerous individual my advice would be not to meet with him he is an abusive person so you may each cop a spray for not going along with him HM”
The plaintiff contends that the six summons documents constitute five publications, between 30 May 2011 and 2 June 2011, of the 1 June 2010 email.[5] The plaintiff contends that DCB11 and DCB12 were published to the Enforcement Branch of the Australian Securities Exchange, DCB15 was published to Mr Epstein and the Market and Participant Supervision Team of the Australian Securities and Investments Commission, DCB16 was published to Mr Matthew Drummond (a journalist at the Australian Financial Review newspaper), DCB17 was published to Mr Richard Gluyas (a journalist at The Australian newspaper) and DCB18 was published to Mr Ian Rogers (a journalist at the Banking Day web based media company). As with the publication pleaded in the statement of claim, it is not alleged that any of the summons documents have been published in the media.
[5]Exhibit DCB11 and DCB12 is said to be one publication, with the other four publications being Exhibits DCB15, DCB16, DCB17 and DCB18.
The use to which the plaintiff wishes to put the summons documents
The plaintiff wishes to commence a new proceeding (after issuing notices of concern[6] pursuant to Part 3 of the Defamation Act 2005) against the defendants in relation to the five publications referred to above. The plaintiff does not wish to issue any proceeding relating to the original publication of the 1 June 2010 email, noting that any such publication is outside the 12 month limitation period prescribed by s 5(1AAA) of the Limitation of Actions Act 1958.
[6]Cf s 14 of the Defamation Act 2005, which provides for the giving of a “concerns notice”.
In respect of the five publications, the plaintiff wishes to plead, by way of false innuendo, the following imputations:
“(a) About 1 June 2010 Mr Barrow had some unlawful business involvement with Mr Byrnes, a person banned from managing corporations by ASIC.
(b)About 1 June 2010 Mr Barrow had some unlawful business involvement with Mr Byrnes, a person banned from managing corporations by ASIC, in relation to Bank Fees litigation.
(c)About 1 June 2010 Mr Barrow had some business involvement with Mr Byrnes, a person banned from managing corporations by ASIC.
(d)About 1 June 2010 Mr Barrow had some business involvement with Mr Byrnes, a person banned from managing corporations by ASIC, in relation to Bank Fees litigation.
(e)Mr Barrow is a dangerous individual.
(f)Mr Barrow is an abusive person.”
Before proceeding further, it is necessary to refer to ss 26 and 27 of the Civil Procedure Act 2010, and their operation in this proceeding.
Sections 26 and 27 of the Civil Procedure Act
Section 26 of the Civil Procedure Act provides:
“(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control-
(a)of which the person is aware; and
(b)which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.
(2) Disclosure under subsection (1) must occur at-
(a)the earliest reasonable time after the person becomes aware of the existence of the document; or
(b)such other time as a court may direct.
(3) Subsection (1) does not apply to any document which is protected from disclosure-
(a)on the grounds of privilege which has not been expressly or impliedly waived; or
(b)under any Act (including any Commonwealth Act) or other law.
(4) The overarching obligation imposed by this section-
(a)is an ongoing obligation for the duration of the civil proceeding; and
(b)does not limit or affect a party's obligations in relation to discovery.”
Section 27 of the Civil Procedure Act provides:
“(1) A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.
(2) The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.
(3) A person-
(a)may agree in writing to the use of information or documents otherwise protected under subsection (1); or
(b)may be released from the obligation imposed under subsection (1) by leave of the court.
(4) Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding.
(5) Nothing in this section limits any other undertaking to a court (implied or specific) whether at common law or otherwise, in relation to information or documents disclosed or discovered in a civil proceeding.”
Four of the summons documents (BAR.132, BAR.133, BAR.134 and BAR.135) were disclosed by the defendants to the plaintiff pursuant to s 26 of the Civil Procedure Act. The remaining two summons documents (those referred to in paragraph 1 of the summons) were not disclosed, pursuant to s 26, but were subsequently discovered by the defendants to the plaintiff. The defendants assert that their failure to provide these two documents pursuant to s 26 of the Civil Procedure Act was “inadvertent”. The plaintiff asserts that this failure constitutes “wrongdoing on the part of the defendants”. On the material filed in this appeal (about which I will say more below) I am not prepared to conclude that there has been any “wrongdoing” on the part of the defendants. At best, all that I am prepared to say at this stage is that the first two of the summons documents ought to have been disclosed under s 26 in accordance with its terms, but were not so disclosed. That said, they were discovered as required.
A question arose in this appeal as to whether the test under s 27(3)(b) of the Civil Procedure Act in respect of the release of the obligation imposed under s 27(1) is the same as that for the release of a Home Office v Harman undertaking. In their submissions on this issue, the defendants referred to the explanatory memorandum in respect of s 27, which provided:
“This clause is intended to replicate the implied undertaking in relation to discovery that a party will not use any documents or information received for an ulterior purpose.”
It was submitted that this was a “clear statement of Parliamentary intent”, and that “the power in s 27 to grant leave should be governed by the same principles as the power at common law”. The plaintiff accepted the correctness of this proposition.[7] Accordingly, I am prepared to proceed on the basis that the authorities that govern the release of a Home Office v Harman undertaking also govern the application of s 27(3)(b) of the Civil Procedure Act. At the very least, having regard to the legislative history of ss 26 and 27, there is no reason to conclude that the test under s 27(3)(b) to be released from the obligation referred to therein is more stringent for an applicant than the test in respect of an application to be released from a Home Office v Harman undertaking.
[7]T2.16.
An application for special leave
At the hearing of this appeal, the plaintiff applied to rely on additional affidavit evidence. The plaintiff sought special leave to rely upon a 67 page affidavit affirmed on 29 March 2012. This affidavit, together with its exhibits, amounted to some 910 pages of additional material. The affidavit was designed to show, amongst other things:
(a)the issues raised by the plaintiff were matters of public interest;
(b)the plaintiff was not associated with Mr Byrnes;
(c)the plaintiff is neither a dangerous individual nor an abusive person; and
(d)the first defendant was (and/or the defendants were) actuated by malice to injure the plaintiff.
The plaintiff required special leave to rely on the affidavit because Rule 77.06(7)(b) relevantly provides that, subject to any proper objections as to admissibility, each party to an appeal under Rule 77.06 may, only by special leave, rely upon an affidavit not used or given before the Associate Judge. In support of his application for special leave, the plaintiff filed a second affidavit affirmed on 29 March 2012. In that affidavit, the plaintiff deposed, amongst other matters:
“11.Coming into the hearing before Associate Justice Zammit on 1 February 2012 I considered the circumstances of the matter were such that a refusal to grant leave would be a bar to agitating the causes of action in defamation for publication of the Summons Documents, such that the nature of the hearing was akin to a summary disposal or setting aside a statutory demand.
12.I came to the Court as the plaintiff with a comparatively limited knowledge of the law, including just the summary knowledge of what generally constitutes a ‘genuine dispute’ from the Keay’s Insolvency textbook and some practical experience setting aside a statutory demand through the special leave that I was granted by Justice Goldberg to represent a corporate trustee in the Federal Court of Australia proceedings VID486/2009, Super Choice Now Pty Ltd as Trustee for the Julie Anne Barrow Charitable Trust v Brisconnections Management Company Ltd.
13.Quite simply, if I had known that there was a real issue on the evidentiary threshold with regard to the Summons Documents matter then I would have put on a greater weight of evidence, and that is what I have attempted to do now with my application for a grant of special leave pursuant to Rule 77.06(7)(b) so as to rely on the Third Barrow Affidavit at the hearing (sic) re-hearing de novo before Justice Beach on 3 April 2012.
14.I was unaware until after the 1 February 2012 hearing that there was a right of appeal to a Judge of the Court from any judgment given or order made by an Associate Judge under Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in the form of a re-hearing de novo. Of course I knew that there was likely to be an appeals process but I did not know that where the decision comes from an Associate Judge that this would be de novo (I’d actually never heard that expression before) such that I was not cognisant of any improper tactics of having a ‘dry-run’ in the first hearing”.
It has repeatedly been said in applications for special leave to rely upon evidence not given before the Associate Judge, that parties should not be permitted to use the hearing before the Associate Judge as a “dry run” and, depending on the result, appealing and, on the appeal, filing additional affidavits to bolster the relevant case. However, in the circumstances of this case, I am prepared to accept that this is not what the plaintiff was attempting to do when he relied upon the more limited (but yet voluminous) material tendered before Zammit AsJ, and then sought to rely upon his additional material before me. While the relevance and admissibility of much of the plaintiff’s new material might be debated at length, in the end, I am persuaded to grant the plaintiff special leave to rely upon the additional material filed by him.
The principles to be applied
In Hearne v Street,[8] Hayne, Heydon and Crennan JJ said in relation to the implied undertaking:[9]
“… Although it can be released or modified by the court, that dispensing power is not freely exercised and will only be exercised where special circumstances appear.”[10]
[8](2008) 235 CLR 125.
[9]Ibid, [107].
[10]See also Esso Australia Resources Limited v Plowman (1995) 183 CLR 10, 37.
In Springfield Nominees v Bridgelands Securities,[11] Wilcox J said:[12]
“For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.”
[11](1992) 38 FCR 217.
[12]Ibid, 225.
While this dicta of Wilcox J’s has been followed in many cases, in Ambridge Investments Pty Ltd v Baker & Ors(No 3),[13] Vickery J said:[14]
“However, in approaching a determination as to whether ‘special circumstances’ are present in a particular case, consistently with the applicable case law as it has developed to this point, I would vary a little the formulation of Wilcox J in Springfield, to arrive at the following test: ‘special circumstances’ may arise where there are special features (or a special feature) of the case which afford good reason for modifying or releasing the undertaking, being circumstances which are of sufficient gravity to override the private and public interest in protection of the confidentiality of a person’s private documents which are required by law to be produced to a court.”
[13][2010] VSC 545.
[14]Ibid, [33].
Vickery J went on:[15]
“However, an important consideration in weighing the various factors which may enliven the discretion are also matters of a public interest character. They will include the likely contribution of the document in question to achieving justice in the second proceeding and the public interest in ensuring that all relevant material is before a court to enable it to properly discharge its function. The Victorian Charter of Human Rights[16] by s 24(1) reinforces the common law right of a party to a fair criminal or civil trial. Denial of relevant documents could compromise the exercise of this critically important right and deny justice to an accused or a litigant. If this was to occur, the public interest in furthering the administration of justice could be compromised or negated.”
[15]Ibid, [35].
[16]Charter of Human Rights and Responsibilities Act 2006, s 24(1).
In Laen Pty Ltd v At the Heads Pty Ltd & Ors,[17] Davies J said:[18]
“First, the purpose of the implied undertaking is to protect against the misuse of material produced under coercion of the Court’s processes, not to prevent a party’s access to justice. If the proposed use is for the purposes of other proceedings, the Court’s power in relation to its own proceedings will provide the necessary protection against misuse. The existence of the implied undertaking cannot fetter or restrict the Court’s power in relation to its own processes in proceedings instituted before it. Nor can it operate as an estoppel against the use of the processes of the Court in that other proceeding. The mere fact of commonality of subject matter may be sufficient to establish that the party has a legitimate forensic purpose for the use of the material in the second proceeding, but the test is not commonality of subject matter. Generally, use in a subsequent proceeding would not be an improper use of material previously obtained subject to an implied undertaking, unless that material was obtained in the first proceeding for an ulterior purpose. There is no suggestion in this case that Laen had any improper motive in obtaining the disclosure to it in the first proceeding of the documents in question.”[19]
[17][2011] VSC 315.
[18]Ibid, [10] (footnotes omitted).
[19]See further Riddick v Thames Board Mills Limited [1974] 1 QB 881; Prudential Assurance Co Limited v Fountain Page Limited [1991] 1 WLR 756; Griffiths & Beerens v Duggan (No 2) [2008] VSC 230; Citicorp Life Insurance Limited v Lubransky [2005] VSC 101, [63]-[65] wherein Hargrave J added to the list of factors referred to by Wilcox J “The extent to which the information contained in the documents under consideration has entered the public domain”; and Fortis Business Holdings LLC v Commonwealth Bank of Australia [2009] VSC 274.
The special circumstances relied upon by the plaintiff
In argument, the plaintiff identified the special circumstances he relied upon as follows:[20]
[20]T6.23 – T7.24 and T8.8 - .27.
“Well I would say that the initial correspondence from myself to the defendants was itself a public interest correspondence. It was about concerns raised about disclosures of an ASX listed company and I put those questions directly to the company first of all and I copied in the regulator, ASIC to that. Now, after that, not a long time after, but after that was sent then I spoke to a journalist at The Age and that’s in the materials there.
…
Right, so then there was a reply to that - to me and also to the regulator. Given that the defendant hadn’t been apprised that the journalist from The Age had also received the materials, he also received a copy of that. I say that that reply of 30 May, the McLernon letter, I say that that was actually an attack on me then. It wasn’t a reply to an attack, because my initial letter itself was not an attack. There were no allegations in my letter, there were no accusations, there were no suggestions of wrongdoing Your Honour. I had raised - simply raised questions there and was quite surprised to receive the response that I did.
At the same time Your Honour what I did not know and there are certain imputations in there that I pleaded that are the current proceedings, on that first letter of McLernon, 30 May. That letter was sent attached to an email at 2.36 p.m., that’s Australian Eastern Standard Time on 30 May. Eight minutes later, Your Honour, only eight minutes later, another email was sent to the regulator, ASIC, and also to Mr Epstein, the journalist with further and personal attacks on me. I did not receive that email at all Your Honour. That is actually one of the publications I’m seeking leave for.
…
… one of the other circumstances is wrongdoing on part of the defendant in relation to how I got these documents. These documents were not given to me in the first place, they were secret documents and then there was some truculence. I do suggest to you there was actually some wrongdoing in covering up these documents in the CPA process and also the discovery. I didn’t have the documents in the first place Your Honour to put them into the pleadings. If I had them I may well have done it at the time, but subject to the s.35 defamation quantum issue, Your Honour.
There was a secret second email which attacked me, which gives special circumstances here Your Honour of a public interest nature. If people are going to approach a company and also then the regulator and then they are attacked both to them personally and then behind their back, then this ought to give rise to an opportunity to enforce the rights where there is a true defamatory imputation indeed Your Honour.”
Later in his submissions, Mr Barrow relied upon the fact that the summons documents were not internal or “true internal” documents of the defendants. Having made submissions in relation to the public interest concerning the underlying issues, Mr Barrow asserted that the summons documents were a reply from the defendants which was an attack on him “secretly”. Having said that he had to draw the documents out from the other side, Mr Barrow went on:[21]
“… and if I had known that they were there in the first place I would have been in the position to put them in my initial pleadings Your Honour. I then go into the merits of the case in detail at a level that there is an arguable cause of action, but also that there is a good cause of action and I go through all of the elements of defamation there Your Honour.”[22]
[21]T16.1 - .7.
[22]The plaintiff’s submissions concerning special circumstances were also to be found in the written submissions he filed: see in particular the plaintiff’s submissions dated 2 April 2012 at paragraph 9 and following.
The resolution of this appeal
Notwithstanding his submissions that if he had known of the summons documents “in the first place” he would have been in a position to put them in his initial pleadings, when I raised with the plaintiff why he simply did not seek leave to amend his pleadings by reference to the summons documents, the plaintiff said that he did not want to do that because of s 35 of the Defamation Act. In support of his position, the plaintiff relied upon the Court of Appeal’s decision in Buckley v The Herald & Weekly Times Pty Ltd.[23]
[23](2009) 24 VR 129.
Sub-sections (1) and (2) of s 35 of the Defamation Act provide:
“(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.”
In accordance with sub-ss (3) – (8) of s 35, the amount of $250,000 referred to in sub-s (1) is indexed each year. The current indexed amount is $324,000.[24]
[24]Victorian Government Gazette No. G25, 23 June 2011.
So far as using discovered documents for the purpose of making amendments to the pleadings in the proceedings in which they were discovered (or joining additional defendants or pleading additional causes of action) is concerned, in Sybron Corporation v Barclays Bank PLC,[25] Scott J said:[26]
“Joinder of additional parties as a consequence of discovery is a common procedural occurrence. Neither I nor counsel have ever in practice heard of an objection to such joinder on the ground that discovered documents ought not to be used for such a purpose. If, instead of joinder, a new action is started, the substance of the situation does not seem to me relevantly different. I cannot see any sensible reason why the court should regard this new action as inappropriate for the use of the discovered documents.”
[25][1985] 1 Ch 299.
[26]Ibid, 328.
In Allstate v ANZ Banking Group Limited,[27] Hill J stated:[28]
“The cases make it clear, however, that it will not be a collateral or ulterior purpose to use documents disclosed on discovery to add new causes of action or parties to the action in which the documents have been disclosed…”
[27](1995) 57 FCR 360.
[28]Ibid, 378.
However, in Mann v Medical Defence Union Limited,[29] Ryan J expressed the view that Hill J’s statement goes too far “if it is understood as asserting that it can never be a collateral or ulterior purpose to use documents disclosed on discovery to add new causes of action or parties to the action in which the documents have been disclosed”.[30]
[29][1997] FCA 45.
[30]See further The Bell Group Limited (in liquidation) & Ors v Westpac Banking Corporation & Ors [2001] WASC 315, [284]-[291].
The considerations the plaintiff advances as “special circumstances” may be summarised as follows:
(a)the proceeding (and the underlying concerns expressed by the plaintiff) are said to be matters of public interest;
(b)the summons documents constitute an attack on the plaintiff that was made in secret;
(c)there was misconduct in failing to disclose all of the summons documents under s 26 of the Civil Procedure Act;
(d)the summons documents are not true internal documents, being documents that were published by the defendants to third parties; and
(e)if there had been appropriate disclosure under s 26 of the Civil Procedure Act, then the plaintiff would have been in a position to use the documents in the present proceeding.
I do not think there is much in the public interest point. The plaintiff does not bring this proceeding on behalf of any other party or interest. It is a personal proceeding in which the plaintiff claims damages, interest and costs, seeking to vindicate his own position.[31] While it might be accepted that the underlying issues concern matters relating to, and the conduct of, a listed company, this does not change the fundamental character of this proceeding from a personal proceeding into a proceeding that might be described as “public interest litigation”.
[31]Originally a “written apology” was also claimed.
With the exception of the “misconduct” point (which I have dealt with at paragraph [21] above), the remaining points made by the plaintiff are not entirely without substance. It is at least arguable that the summons documents are defamatory of the plaintiff (remembering that the ordinary, reasonable reader can, and does, read between the lines; and that the ordinary reasonable reader is a layman, not a lawyer, and has a capacity for implication that is much greater than that of a lawyer).[32] To the extent the defendants submitted otherwise (that is, to the extent the defendants submitted that the claims the plaintiff wishes to make in respect of the summons documents are without merit), I reject that submission. It may be that the appropriateness or otherwise of one or some of the imputations the plaintiff wishes to rely upon in respect of the publications of the summons documents can be debated. That said, it does not seem to me that the plaintiff’s proposed claims are so untenable as to be an answer in itself to the plaintiff’s application.
[32]Lewis v Daily Telegraph Limited [1964] AC 234; Jones v Skelton [1963] SR (NSW) 644; Lang v Australian Consolidated Press Limited [1970] 2 NSWR 408; Middle East Airlines Airlieban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323; Farquhar v Bottom [1980] 2 NSWLR 380 and Gant v The Age & Ors [2011] VSC 169.
The short answer to the plaintiff’s application is that the circumstances of this case are not unusual or special in any relevant sense. In defamation proceedings, it is common to find amongst a defendant’s discovery other arguably defamatory publications that are (at the time of discovery) not the subject of any pleading. It cannot be said that the circumstances of the present case constitute circumstances which are not frequently present in other defamation cases. In such cases, there is usually an application made by the plaintiff to amend the statement of claim (and sometimes the reply) to plead malice, or additional grounds of malice, or a claim for aggravated damages, or additional bases for a claim for aggravated damages, or further causes of action in defamation.
As was submitted by the plaintiff, if the summons documents had been disclosed to him at an earlier point in time, he may have been in a position to have pleaded matters in respect of them in his statement of claim. It is to be remembered that if the summons documents were disclosed pursuant to s 26 of the Civil Procedure Act (before any discovery was ordered or given), then the documents could only have been used in the proceeding in respect of which the disclosure was made. To use them otherwise would constitute a contempt of court.[33]
[33]See s 27(2) of the Civil Procedure Act.
In further support of his application to use the summons documents in other proceedings, the plaintiff relies upon Buckley v The Herald & Weekly Times Pty Ltd.[34] It was submitted by the plaintiff that requiring the plaintiff to amend the current pleading, rather than permitting him to institute a fresh proceeding, confined the plaintiff to an award of damages capped by s 35 of the Defamation Act. The plaintiff submitted that Buckley was authority for the proposition that he should not be so confined, and that he was entitled to commence a second proceeding which (putting aggravated damages to one side) would effectively cap his damages at double the amount referred to in s 35 of the Defamation Act.
[34](2009) 24 VR 129.
Buckley was a case where the Court of Appeal held that a judge of the Trial Division should not have consolidated two defamation proceedings between the same parties. As was noted in that case, the effect of the consolidating order was to impose a cap of $250,000 as indexed on the damages, apart from aggravated damages, where otherwise the plaintiff might have been able to recover damages up to $500,000 (again, as indexed). Nettle JA (with whom Ashley and Weinberg JJA agreed) said:[35]
“The judge held that he did not consider that the reduction from $500,000 to $250,000 constituted prejudice of the kind which should inhibit the order being made because, in his Honour’s view, the question of prejudice cut each way: in the sense that, whichever decision he made, one party's potential detriment would be the other party's potential advantage.[36]
With respect, I think that to be an erroneous way of approaching the matter. Prima facie, the applicant had the right to bring two separate proceedings. The judge had previously upheld the applicant’s right to bring the second proceeding without obtaining leave under s 23 of the Act. His Honour did so on the basis that the article the subject of the second proceeding was not ‘like’ any of the articles the subject of the first proceeding but rather had a significantly different subject matter and focus.
As I apprehend the operation of the Act, it is intended that, if a plaintiff satisfies the requirements under s 23, and so is permitted to bring a separate proceeding, the plaintiff is prima facie entitled to the benefit of a further limit of $250,000 in respect of that proceeding. In effect, the Act provides in itself for the circumstances in which proceedings will and will not be brought as one. The effect of the consolidation order is to cut across that intention.”[37]
[35]Ibid, [6]-[8].
[36]Buckley v The Herald & Weekly Times Pty Ltd (No. 3) [2009] VSC 59, [18].
[37]Footnote in original.
The fallacy in the plaintiff’s argument is that in Buckley, the plaintiff had the right to bring two separate proceedings. The plaintiff has no such right in the present case. The plaintiff needs leave to use the summons documents so as to be able to commence a subsequent proceeding.
Even if special circumstances could be shown, there is much to be said for exercising the Court’s jurisdiction and discretion[38] not to permit the summons documents to be used to commence a fresh proceeding. First, the summons documents are relevant in the present proceeding. It is more likely than not that they will be relied upon by the plaintiff as part of his case on malice. Equally, it is more likely than not that they will form a foundation for a claim for aggravated damages in due course.
[38]Springfield Nominees v Bridgelands Securities (1992) 38 FCR 217, 225 (per Wilcox J).
Secondly, it is more likely than not that if the plaintiff pleads causes of action in respect of the summons documents, the defendants will (amongst other defences) plead qualified privilege defences of the same kind pleaded in the present case (reply to an attack,[39] and reciprocity of duty and interest). The issues (both from the plaintiff’s perspective and from the defendants’ perspective) in the proceeding as presently pleaded and the issues arising from the publication of the summons documents are inextricably linked. In my view, it would not be either reasonable or appropriate to attempt to separate these issues across two proceedings. To do so would involve an obvious duplication and inconvenience. Unlike Sybron,[40] the present case is not one where it can be said there is no sensible reason for not permitting the new causes of action the plaintiff wishes to plead to be pleaded in a separate proceeding.
[39]Indeed, it is likely that the defendants will contend that the publications of the summons documents constituted replies to the same attack referred to in their current pleadings.
[40][1985] 1 Ch 299, 328.
During the course of the hearing, the plaintiff frankly conceded that, but for s 35 of the Defamation Act, he would be “compelled” to take the course of amending his current pleadings, rather than commencing fresh proceedings. As the plaintiff put it (correctly, in my view), he would be so compelled “for efficiency of Court resources”.[41] To that concession might be added the requirement enacted in s 29 of the Supreme Court Act 1986, namely that the jurisdiction of the Court must, as far as possible, be exercised in a way that avoids a multiplicity of proceedings.
[41]T17.5 - .12.
Conclusion
The plaintiff’s application must be dismissed. That application being dismissed, it follows that the plaintiff’s appeal from the orders of Zammit AsJ must be dismissed. I will hear the parties on the appropriate form of orders and costs.
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