Bowes, John Albert v Fehlberg, Ivan Robertson and Goodwin, Gwendoline Ruth and Stokes, Graeme Walter Phillip and Amos, Julian John and Australian Broadcasting Commission

[1998] TASSC 43

43/1998

PARTIES:  BOWES, John Albert
  v
  FEHLBERG, Ivan Robertson

GOODWIN, Gwendoline Ruth
STOKES, Graeme Walter Phillip
AMOS, Julian John
AUSTRALIAN BROADCASTING CORPORATION

TITLE OF COURT:               SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  1602/1994
DELIVERED:  28 April 1998
HEARING DATE/S:               9 March 1998
JUDGMENT OF:                   Underwood, Wright and Slicer JJ

CATCHWORDS:

Appeal - Practice and procedure - Tasmania - Notice of cross-appeal - Whether notice of cross-appeal necessary if respondent to appeal seeks to impugn order.

Supreme Court Civil Procedure Act 1932 (Tas), ss47 and 49.

Aust Dig Appeal [146]

Defamation - Statements amounting to defamation - In general - Whether imputation alleged capable of defamatory meaning.

Aust Dig Defamation [6]

Procedure - Supreme Court procedure - Tasmania - Rules of Court - Amendment - Amendment of statement of claim - Whether proposed amendment so obviously futile that it should be disallowed.

Aust Dig Procedure [276]

Procedure - Supreme Court procedure - Tasmania - Rules of Court - Service - Whether service of order allowing amendments is necessary to prevent order becoming void where there is an appeal against the order.

Rules of Court, O31, r8.

Aust Dig Procedure [276].

REPRESENTATION:

Counsel:
           Appellant:  S P Estcourt
           First Respondent:  C P R Hill (leave to withdraw granted)
           Second Respondent:  R C MacKay
           Third Respondent:  C H Hobbs
           Fourth Respondent:  D F M Zeeman
           Fifth Respondent:  S J Holt

Solicitors:
           Appellant:  Archer Bushby
           First Respondent:  Piggott Wood & Baker
           Second Respondent:  Dobson Mitchell & Allport
           Third Respondent:  Craig Hobbs
           Fourth Respondent:  Butler McIntyre & Butler
           Fifth Respondent:  Murdoch Clarke Cosgrove & Drake

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  43/1998
Number of pages:  7

Serial No 43/1998
File No 1602/1994

JOHN ALBERT BOWES v IVAN ROBERTSON FEHLBERG, GWENDOLINE RUTH GOODWIN, GRAEME WALTER PHILLIP STOKES, JULIAN JOHN AMOS and the AUSTRALIAN BROADCASTING CORPORATION

REASONS FOR JUDGMENT  FULL COURT

UNDERWOOD J
WRIGHT J (Dissenting in part)
SLICER J
28 April 1998

Order of the Court

Appeal dismissed

Serial No 43/1998
File No 1602/1994

JOHN ALBERT BOWES v IVAN ROBERTSON FEHLBERG, GWENDOLINE RUTH GOODWIN, GRAEME WALTER PHILLIP STOKES, JULIAN JOHN AMOS and the AUSTRALIAN BROADCASTING CORPORATION

REASONS FOR JUDGMENT  FULL COURT

UNDERWOOD J
28 April 1998

I have had the advantage of reading the reasons for judgment of Wright J.  I agree with the substance of his Honour's reasons for concluding that the appeal should fail. 

I also agree, for the reasons expressed by Wright J, that the submissions of counsel for the fifth named respondent are correct in that none of the proposed allegations in the proposed statement of claim should have been allowed.  However, I regret that I differ from Wright J in that I do not consider that this Court should vary the order of Crawford J made on 11 June 1997 by substituting for par1, an order that the appellant be refused leave to amend his statement of claim in accordance with the document marked "A" annexed to the application dated 4 February 1997.  The appellant's notice of appeal did not put that part of the impugned order in issue.  The fifth named respondent did not lodge a cross-appeal attacking any part of the order made by Crawford J on 11 June 1997.  Whilst the Supreme Court Civil Procedure Act 1932, s49, provides a mechanism for making ancillary or consequential orders when the order appealed from is set aside or varied, it does not, in my respectful view, authorise the making of the order of variation propounded by Wright J. The order proposed by his Honour is not, I think, ancillary to or consequential upon the dismissal of the appellant's appeal.

As I would dismiss the appeal, the issue concerning the effect of the Rules of Court, O31, r8, does not arise and I would prefer to defer expressing any opinion about the effect and operation of this rule until it does fall for determination.

I would dismiss the appeal.

WRIGHT J
28 April 1998

The appellant has sued the three makers of statutory declarations, a Labor Member of the House of Assembly and the Australian Broadcasting Corporation in respect of a series of allegations made in 1994 concerning conversations allegedly occurring between the appellant and the first three respondents relating to the proposed surveillance of a Liberal Member of Parliament.

From the outset, the allegations were confused, imprecise and vague and, if the material contained in the statutory declarations, whether true or false, had not been misunderstood or misinterpreted by the fourth and fifth named respondents, it is likely that nothing would have come of them.

It is plain, however, that, for some reason, the fourth respondent imbued the allegations which had been made with grave and sinister implications, both for the Premier of the day and the appellant, who, at the time, was the Premier's private secretary.  This attitude appears to have been fostered and advanced by the fifth respondent's employees who, in discussing the issues on radio and television, used language and presentation techniques which hinted at impropriety, skulduggery and deceit on the part of the appellant and the Premier.

Having said this, however, the question for this Court is whether or not Crawford J was correct in making the orders which he did on 26 May 1997 upon the appellant's application for leave to amend the statement of claim.  That question can be resolved only by a critical examination of the proposed new pleading.

As Mr Estcourt, counsel for the appellant, said at the outset of his submissions, the two central questions for determination are:

Question 1

Are the following imputations alleged to have arisen from the respondents' allegedly defamatory publications capable of being defamatory of the appellant?

(a)      that the appellant wanted a compromising photograph taken of a Member of Parliament;

(b)      that the appellant wanted covert surveillance undertaken of a Member of Parliament; and

(c)      that the appellant wanted, by covert means, to remove a Member of Parliament from his seat.

Question 2

Are the following defamatory imputations capable of being attributed to the words allegedly used by the respondents in referring to the appellant?

(d)that the appellant wanted to obtain material in order to blackmail a Member of Parliament; and

(e)that the appellant was prepared to engage in criminal conduct in order to remove a Member of Parliament.

Counsel for the appellant put his argument in this way:

"The learned primary judge as to imputations a), b) and c) in question 1 held:

_'The nature of the behaviour and activity of the unidentified member of parliament was not disclosed in the published material.  A reader would be justified in concluding that the member of Parliament was also a member of the Liberal Party and that his perceived behaviour was regarded as being reprehensible in some way'.

_'It might be open for a reasonable person to conclude from the words published that the plaintiff wanted a photograph taken of a member of Parliament which could be used as evidence that he was behaving in a way in which would imperil his reputation and standing (compromise him in that sense)'.

_'It might also be open for a reasonable person to conclude from the words used that the plaintiff was aware that such a photograph might have to be obtained covertly'.

_'It would be further open for a reasonable reader to conclude that the plaintiff wanted evidence of misbehaviour by the member of Parliament to assist in bringing about the termination of his membership as a parliamentarian and that the plaintiff was content that the evidence be obtained in the form of a photograph which might have to be obtained covertly ...'.

_'The statement attributed to the plaintiff that he (we) would like to slide the particular parliamentarian off his seat is open to an interpretation that he regarded the behaviour of the parliamentarian as sufficiently reprehensible to render him unfit to be a member of Parliament'.

_'I am satisfied that a reasonable person might conclude that the plaintiff wanted a photograph taken of the member of Parliament, if necessary covertly, which could be used as evidence that he was behaving in a particular way so as to imperil his reputation and standing and to assist in bringing about the termination of his position as a parliamentarian'.

The learned primary judge concluded however that those imputations were not capable of being defamatory of the plaintiff because his Honour held that without knowing what the behaviour of the member of Parliament was a reasonable reader would not know 'whether a desire to see his public office terminated and the methods sought to be adopted to that end were or were not reasonable and justified'.

His Honour held that 'a reasonable person would have to conclude that the plaintiff may well have been acting properly and responsibly'.

The appellant contends that if it was open to a reasonable reader to conclude:

(a)that the plaintiff regarded the behaviour of the member of Parliament as sufficiently reprehensible to render him unfit to be a member of Parliament; and

(b)that the plaintiff wanted evidence of that behaviour in the form of a photograph which might have to be obtained covertly; and

(c)that the plaintiff wanted that evidence to assist in bringing about the termination of that parliamentarian's membership of Parliament,

then,

(1)the desire to see the member's public office terminated and the methods sought to be adopted to that end could never be seen as 'reasonable or justified' for a private citizen; and

(2)a private citizen could not in those circumstances ever be regarded as 'acting properly and responsibly'."

In my opinion, the conclusions for which counsel contends are simply untenable.  Crawford J convincingly demonstrated that the answer to each of the two questions posed by counsel should be "No".  I entirely agree with Crawford J's reasons so far as they relate to the first three respondents and need not repeat them.

The amendments to the statement of claim, to the limited extent that they were allowed by Crawford J, effectively removed all allegations of defamation against the first three respondents, but permitted allegations of defamatory imputations to remain against the fourth and fifth respondents.

Counsel for the fifth respondent, Mr Holt, argued that none of the proposed allegations of defamation contained in the proposed amended statement of claim should be allowed to stand.  He conceded that there was no cross-appeal, but placed reliance upon the provisions of the Supreme Court Civil Procedure Act 1932, ss47 and 49.

For my part, I think that s49 provides a mechanism for allowing the Full Court to exercise necessary incidental or consequential powers in cases where the determination of an appeal involves interference with more of a judgment order or determination than has been put in issue by the notice of appeal. I do not see it as providing an alternative vehicle for respondents to an appeal to mount a substantive challenge to that part of the judgment order or determination which has not been put in issue by the appeal itself. Such a course should normally be pursued by filing a notice of cross-appeal.

However, in the present case the substantive arguments which Mr Holt wished to put before us were advanced without objection from the appellant and I see no injustice to the parties in determining those submissions on their merits in all the circumstances of the case.

Mr Holt argued that as his Honour had disallowed amendments which would have alleged imputations which were incapable of being defamatory so far as the first three respondents were concerned, imputations of precisely the same kind were equally incapable of being defamatory if and when made in respect of the appellant by the fourth and fifth respondents, or either of them.

Mr Holt pointed out that the various publications of allegedly defamatory material by each respondent were not alleged to have achieved a cumulative effect, by approval or adoption, as the issues were discussed from day to day in the public arena but, in any event, he submitted, the self same imputations set out in question 1(a), (b) and (c) above, which it had been determined by Crawford J, were incapable of having a defamatory effect when made by the first three respondents, were equally incapable of having that effect if made by the fourth and fifth respondents, no matter what additional materials or allegations may have found their way into the subsequent media broadcasts complained of.

In my opinion, this argument must be correct.  If the imputations against the appellant underwent a metamorphosis and became defamatory of the appellant as the issues were repeated and embellished by the fourth and fifth respondents on or about 21 September 1994, the nature and extent of those changes should be specified in the statement of claim.  It is apparent to me that the real complaint which the appellant makes against the fourth and fifth respondents is that both of them were suggesting that, in saying and doing what he is alleged to have said and done regarding the obtaining of photographs and, possibly having a Member of Parliament removed from his seat, the appellant was acting with gross impropriety and for base or vengeful motives.  This is the gravamen of the appellant's claim, I think, but it has not been alleged that these were the imputations being made.  In my opinion, they cannot be incorporated by implication or by reading the alleged imputations in their present form as if qualified or enhanced in some unspecified way by the actual context of the radio and television discussions.

Imputations which are to be relied on must be alleged with specificity and precision (Astaire v Campling [1966] 1 WLR 34; Hadzel v De Waldorf (1970) 16 FLR 174 at 179 and 182 - 183; Australian Consolidated Press v Rogers [1971] 1 NSWLR 682 and Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154 - 155).

The proposed amendments relating to the fourth and fifth respondents' alleged imputations against the appellant are all lacking in essential detail and, as they stand at the present, are not capable of having a defamatory meaning.

In consequence, therefore, I think that the proposed amendments should have been disallowed in toto.  As a result, the order made by Crawford J on 11 June 1997 should be varied by substituting for par1 thereof, the following:

"1The plaintiff be refused leave to amend his statement of claim in accordance with the document marked 'A' annexed to the application dated 4 February 1997."

During the course of hearing the appeal, it became apparent that the appellant had not served the statement of claim in the form permitted by Crawford J.  The question was posed from the bench whether the order appealed had become ipso facto void, pursuant to the Rules of Court, O31, r8.  In light of the conclusion which I have reached as to the substance of the appeal, this question is somewhat academic, but, in deference to the argument advanced by Mr Estcourt, I must say that my present view is that he is correct when he submits that to serve such a document upon opposing parties after the institution of an appeal would be entirely inappropriate.  It seems to me that O31, r8 can have no application when the order allowing the relevant amendments has been challenged on appeal.

What I have said in these reasons should not be interpreted as an expression of opinion that the appellant does not have a valid cause of action against the fourth and/or fifth respondents.  If properly pleaded, he may well have a good claim.  That, however, remains to be seen and must await further refinement of the pleadings if such a course is permitted upon some future application to amend being made.

SLICER J
28 April 1998

I have read in draft form the reasons for judgment of Wright J, and agree with his reasoning and conclusion.  However, like Underwood J, I do not consider that this Court should vary the order of Crawford J made on 11 June 1997.  The terms of the order were not put in issue by the notice of appeal, and the fifth named respondent, who raised the question in the course of argument,  had not sought to cross-appeal.

I would dismiss the appeal.