Boschetti v Carr - [2000] WASC 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOSCHETTI -v- CARR [2000] WASC 228

CORAM: HASLUCK J

HEARD: 4 SEPTEMBER 2000

DELIVERED : 4 SEPTEMBER 2000

FILE NO/S: CIV 2254 of 1998

BETWEEN: JOHN ALBERT BOSCHETTI
Plaintiff
AND
RICHARD E CARR
Defendant

Catchwords:

Defamation - The question of whether leave to amend the claim should be allowed after entry of an interlocutory judgment in default of defence - Whether leave to interrogate should be allowed in these circumstances in respect of damages - Leave granted in both cases

Legislation:

Nil

Result:

Leave granted to amend claim and to administer interrogatories

Representation:

Counsel:

Plaintiff: Mr J R B Ley
Defendant: Mr P J Ward

Solicitors:

Plaintiff: Cocks Macnish
Defendant: Peter Ward

Case(s) referred to in judgment(s):

Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279
Buxton and Lysaught Pty Ltd v Buxton [1977] 1 NSWLR 285
Duke of Buccleuch (1892) Probate 201
Gould v National Provincial Bank Ltd [1960] Ch D 337
Singh v Atombrook Ltd [1989] 1 WLR 810

Case(s) also cited:

Midland Bank Trust Co Ltd v Green [1979] 1 WLR 460

HASLUCK J: There are two applications before me, being firstly an application for leave to amend the statement of claim in terms of a minute of amended statement of claim; secondly, an application for an order that the plaintiff have leave to administer interrogatories in terms of a minute of proposed interrogatories.
In dealing with these applications it will be useful to commence by looking briefly at the nature of the claim being advanced by the plaintiff, Mr Boschetti. In that respect I draw upon the matters asserted in the minute of amended statement of claim dated 4 September 2000 which replaces an earlier minute in similar terms. No defence has been filed, but I understand from counsel for the defendant that there is no significant disagreement with the narrative set out in the minute of amended statement of claim.
The minute reveals that the plaintiff is a fisherman who has worked within the crayfishing industry since 1958. He and companies with which he has been and is associated are the holders of various licences. It is apparent from the minute that on or about 18 June 1997 the defendant, who has also had experience in the crayfishing industry, wrote and published a lengthy document in which he voiced certain criticisms about what was taking place in the crayfishing industry.
The document in question is headed, "The Godfathers of the Crayfish Industry", and various matters are touched on concerning prominent figures in the industry. The main thrust of the document appears in par 3 in which it is said that nothing was done to improve the Fisheries Department after the findings of the Royal Commission held in 1964. The author of the document goes on to say that "today the WA crayfishing industry is massively corrupt and enormously worse than in 1964."
This circular, as it is presented in the minute of amended statement of claim, was signed by the defendant, Mr Richard Carr, and is dated 18 June 1997.
The statement of claim as originally formulated indicated that this circular document was published to various individuals, with particular reference being made to a Mr and Mrs Pirrottina. The statement of claim went on to refer to further circulars, including a circular said to have been published on 30 September 1997. These further documents covered matters of the kind mentioned in the first document.
The document dated 30 September 1997 contained a heading referring to "The Rule of an Evil Dictator". This document, again, made mention of supposed godfathers or persons of influence in the crayfishing industry. The statement of claim alleged that the document in question was published and distributed by the defendant, Mr Carr, in circumstances which made republication of the document a natural and probable consequence of the initial publication. It is against this background that the plaintiff has advanced a claim in defamation.
The plaintiff has provided particulars of the publication, described those to whom the documents were published, and has gone on to refer to circumstances which are said to justify a claim for aggravated and exemplary damages.
Counsel for the defendant has indicated that there is no controversy concerning liability. There could be some controversy as to the degree of distribution and as to some of the matters bearing upon the quantum of damages, this being an issue which has yet to be determined.
In dealing with the applications before me, it is also necessary to look briefly at the procedural history of the matter. In that regard I draw principally upon submissions made by counsel for the plaintiff.
It seems that the proceedings were commenced on 9 November 1998 by a generally endorsed writ of summons. On the same date the plaintiff filed a statement of claim reflecting a claim of the kind I have just described. The defendant, Mr Carr, was served with true copies of the written statement of claim on 24 November 1998. On 8 December 1998 the defendant entered an appearance.
It follows from O 20 r 4(1) that the defendant was obliged to serve a defence by 24 December 1998. It emerges from a review of the relevant court documents that the defendant did not serve a defence by 24 December 1998, or at all. On 16 February 1999, the plaintiff entered judgment in default of defence for damages to be assessed; that is to say, an interlocutory judgment was obtained on the basis that evidence concerning quantum had to be submitted to the court before final judgment could be entered for an amount of damages.
In the meantime, the plaintiff and his advisers had looked at the circumstances giving rise to the claim in more detail. They concluded that some matters of fact reflected on the face of the original statement of claim were not entirely accurate and had to be corrected. It emerges from the discussion before me that it was thought necessary to correct certain dates and to correct a matter of detail as to the circumstances in which publication of the words complained of was made to Mr and Mrs Pirrottina.
It is important to note, however, and it is a central facet of my reasoning as I come to the matters in issue before me today, that the proposed amendments did not in any significant respect alter the general thrust of the plaintiff's claim.
Against the background I have described, on 3 March 2000 the plaintiff filed an application for leave to amend the statement of claim. On 21 March 2000 the plaintiff filed an application for leave to interrogate the defendant. Copies of these applications were served upon the defendant and it is these two applications which are before me today.
The applications in question had been brought on for hearing previously on 9 June 2000 when the defendant appeared before the court in person. On that occasion the presiding Judge was understandably concerned by the fact that the defendant was not represented, especially in circumstances where a judgment in default of defence had been obtained. He allowed the defendant leave within seven days to apply for an order setting aside the judgment entered on 16 February 1999. He adjourned the applications before him sine die.
The expectation was that the defendant would proceed to obtain legal advice. The defendant would be at liberty to make an application to set aside the judgment obtained in default of defence, if advised to do so.
I digress briefly to note that the application for leave to amend the statement of claim which was on the court file at that time, and which had been served on the defendant, refers to a minute bearing the typed date 3 March 2000. Counsel for the plaintiff has now handed up a revised minute of amended statement of claim dated 4 September 2000, being the minute I mentioned in opening. It corresponds with the earlier minute of 3 March 2000 save for a small variation which is to be found in par 4(b) concerning the publication to Mrs Pirrottina.
The plea is now that publication to Mr Pirrottina was a natural and probable consequence of the publication of the first matter complained of to Mrs Pirrottina. I emphasise the additional words "to Mrs Pirrottina". That is the only variation of any consequence between the two minutes. It follows that the defendant, having been served with the earlier minute, can be said to have had adequate notice of the nature of the amendments to be made, as they are now reflected in the minute of 4 September, notwithstanding the small variation I have drawn attention to.
It is against this procedural background that I come to the question of whether leave should be granted in terms of the minute of amended statement of claim of 4 September 2000. The starting‑point to deal with an application of that kind must obviously be the Rules of the Supreme Court and the essential point of reference is O 21 r 5 whereby, "The court may at any stage of the proceedings allow the plaintiff to amend his writ or any part to amend his pleading on such terms as to costs or otherwise as may be just and in such manner, if any, as the court may direct."
A preliminary question arises as to whether any power exists to allow an amendment in circumstances where an interlocutory judgment by default has already been obtained. Seaman Civil Procedure at par 21.5.10 indicates that the words, "At any stage of the proceedings" give the court jurisdiction to grant leave to amend after judgment has been entered. The author cites as authority for that proposition Singh v Atombrook Ltd [1989] 1 WLR 810 at 817.
Counsel for the plaintiff relied upon the same precedent. When one turns to the judgment of Kerr LJ in Singh v Atombrook Ltd at 817 the learned Judge notes that there is no reason in principle which would preclude the court in appropriate cases from amending the pleadings even after final judgment.
Counsel for the plaintiff submits, on the authority of that case and having regard also to Duke of Buccleuch (1892) Probate 201 at 208, that the court clearly has power to allow an amendment, even after entry of judgment. He suggests that in the present case where the judgment before the court is an interlocutory judgment with damages remaining to be assessed, the power to amend is even more obvious. If, in Singh's case, an amendment was allowed where judgment was final, an amendment of the claim must certainly be permissible in the case of an interlocutory judgment.
I note also that the High Court directed some attention to circumstances of this kind in Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279. The court in that case, although dealing with a slightly different situation, seemed to accept that there was power to allow an amendment provided the defendant had been given a sufficient opportunity to understand the effect of the amendments. The defendant was entitled to know whether the judgment should be thought of as relating to the claim as first formulated or whether the judgment should be thought of as relating to the claim as amended.
In the circumstances of the present case, this latter consideration is not of any significant concern. It follows from the procedural history of the claim I have already provided that the claim as originally formulated closely approximates to the minute of amended statement of claim to which the application to amend relates.
It emerges from this brief review of the decided cases that there is a power to amend, notwithstanding the existence of an interlocutory judgment by default. This was conceded by counsel for the defendant. I therefore proceed to the next question: whether it is desirable and appropriate in the circumstances of the present case that leave should be granted.
Counsel for the defendant submitted that as the amendments being sought are comparatively minor, there is no real need for them to be made as a matter of formality. Where a judgment by default has already been obtained, the defendant has effectively admitted the main constituents of the claim against him; namely, that the words he wrote and published are capable of bearing a defamatory meaning and were indeed defamatory of the plaintiff. The proposed amendments add nothing of substance.
Counsel for the plaintiff asserts that the amendments are required to clarify the allegations and to provide a proper foundation for the claim for damages. He concedes that no facts of any real significance are being added by the amendments. The proposed amendments are essentially a rearrangement of the existing allegations but with greater clarity and accuracy being obtained in respect of certain matters, especially in regard to the question of publication to Mr and Mrs Pirrottina. The possibility that there would be some republication of the words complained of by Mrs Pirrottina to her husband, Mr Pirrottina, is a matter relevant to damages. Counsel for the plaintiff submits that the defendant will not be prejudiced by the amendments being made in any real sense and they should therefore be allowed.
It seems to me that as damages remain to be assessed, it is important and proper that the plaintiff should not leave on the record a pleading which does not truly reflect what the plaintiff understands to be the circumstances of the case. In my view, so long as there remains a live issue as to what damages should be awarded, it is important that the facts and matters underlying that claim should be set out precisely. That is what the plaintiff is endeavouring to do in its minute of amended statement of claim. It follows that the amendment should be allowed.
This brings me to the second of the two applications; namely, the plaintiff's application for leave to issue interrogatories.
The starting‑point of the discussion here is O 27 r 1. By that rule a party may, with the leave of the court, serve notice requiring any other party to answer specified interrogatories relating to any matter in question between the party interrogating and the party served.
Counsel for the plaintiff argues that in the present case, notwithstanding entry of judgment by default, there remains an issue between the parties; namely, the question of what damages, if any, the plaintiff is entitled to recover in the circumstances of the present case.
Counsel for the plaintiff concedes that leave to interrogate should only be granted where there is an issue between the party seeking leave and the party whom the first party wishes to interrogate. Reference is made in that regard to Buxton and Lysaught Pty Ltd v Buxton [1977] 1 NSWLR 285 at 288.
Reference is also made to the case of Gould v National Provincial Bank Ltd[1960] Ch D 337 at 345. That case suggests that if judgment in default is entered against a party, the issue between him or her and the party desiring to interrogate him or her may be thought to have disappeared.
I have already noted that the effect of the interlocutory judgment is to leave outstanding the question of damages. I have noted also that in regard to damages there are issues raised by the claim concerning aggravated and exemplary damages. Counsel for the plaintiff has drawn my attention to a passage from Gatley on Libel and Slander, 9th ed par 30.103, in which it is indicated that interrogatories relating to quantum of damages are generally admissible in defamation actions.
Against this background, I consider that I have power to grant leave to issue interrogatories, notwithstanding the presence of a judgment by default. It seems to me that reasoning of the kind reflected in the cases concerning the allowance of leave to amend is applicable also to this application for answers to interrogatories.
Again, in regard to this matter, the stance of counsel for the defendant is that the proposed interrogatories are unnecessary. The nature of the claim being asserted is apparent on the face of the statement of claim, and with no challenge being raised to those matters in the absence of a defence, they should be taken as defining the boundaries of the claim.
When pressed, counsel for the defendant accepted that interrogatories going to the number of people to whom publication of the material complained of was made may be thought to have a relevance. He disputes the relevance of interrogatories going to matters beyond that issue.
In the circumstances of the present case, I see merit in the line of argument advanced by counsel for the plaintiff. For the interrogatories to be intelligible, questions concerning the number of people to whom the publication was made have to be set in a context. It seems to me that the proposed interrogatories have been formulated in that manner.
It is unnecessary for me to traverse the full range of the interrogatories. In essence, the interrogatories go to the question of whether the defendant attended certain of the meetings of those with an interest in the wellbeing of the crayfishing industry, and each of the various meetings becomes the subject of a discrete interrogatory. Questions are asked as to whether the circulars mentioned in the claim were handed out by the defendant and this obviously has a bearing upon the question of the scale and range of the distribution.
When one comes to the second of the publications complained of, the interrogatories are directed to the question of whether this document was handed out by the defendant in Marine Terrace, Geraldton, and whether copies of the document were delivered to organisations with an interest in the matter.
It seems clear to me that these interrogatories do go to matters which are relevant to the assessment of damages. According, in my view, notwithstanding the objections raised by counsel for the defendant, leave to administer the interrogatories should be granted.