Burch v Parkinson

[2010] TASSC 42

[2010] TASSC 42

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Burch v Parkinson [2010] TASSC 42

PARTIES:  BURCH, Nigel Frank
  v
  PARKINSON, Douglas John
  STATE OF TASMANIA

FILE NO/S:  290/2009
DELIVERED ON:  29 September 2010
DELIVERED AT:  Hobart             
HEARING DATE:  17 September 2010
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Defamation – Publication – Generally – Meaning and proof – Meaning of publication – Principal and agent.

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 45 CLR 41 and Webb v Bloch (1928) 41 CLR 331 considered.

Aust Dig Defamation [28]

Torts – The Law of Torts Generally – Joint or Several Tortfeasors – Contribution – Apportionment – Person

liable vicariously.

Wrongs Act 1954 (Tas), s5(1)(c).

Aust Dig Torts [12]

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Pleadings – Statement of material facts – Unnecessary to relate facts explicitly to specified causes of action.

Supreme Court Rules 2000 (Tas), r258

Aust Dig Procedure [272]

REPRESENTATION:

Counsel:
             Defendant:  L W Maher
             Third Party:  P Turner
Solicitors:
             Defendant:  Zeeman & Zeeman
             Third Party:  Director of Public Prosecutions

Judgment Number:  [2010] TASSC 42
Number of paragraphs:  17

Serial No 42/2010
File No 290/2009

NIGEL FRANK BURCH v DOUGLAS JOHN PARKINSON and
STATE OF TASMANIA (Third Party)

REASONS FOR JUDGMENT  HOLT AsJ

29 September 2010

1. On 17 April 2008 the defendant, a member of the Tasmanian Legislative Council, held a press conference on the lawn outside Parliament House.  The plaintiff alleges that at that press conference the defendant made a number of defamatory imputations against him including that he had stolen government documents and told public lies against the Tasmanian government.  The defendant has issued third party proceedings against the State of Tasmania claiming that, if he is liable, he is entitled to have the State indemnify him.  He does not base his claim in contract.  The claim is made under the Wrongs Act 1954, s3(1)(c) which provides that a person liable for damage may recover contribution from any other person who would, if sued by the plaintiff, have been liable in respect of the same damage. Section 3(2) provides that the amount of the contribution recoverable against a person shall be such amount as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage. The defendant claims that the contribution should amount to a complete indemnity. He says that, in giving the press conference, he was acting as an agent of the State and at its instigation with the result that the State, if sued by the plaintiff, would have been liable for any damage suffered by the plaintiff for defamation.

1. The State has filed an interlocutory application seeking orders that pars 6 and 11 of the statement of claim in the third party proceedings be struck out as embarrassing.  The application proceeds that, thereupon, the balance of the statement of claim should be struck out for failing to disclose a reasonable cause of action with judgment accordingly.  At the hearing, counsel for the State abandoned the second part of the application and conceded that if the impugned paragraphs are struck out the defendant should be at liberty to re-plead.

1. Paragraphs 6 to 11 of the defendant's plea are as follows:

"(6)In or about early April 2008, the then Premier of Tasmania, the Hon Paul Lennon, MHA, acting for and on behalf of The State of Tasmania, instructed the defendant to respond publicly on behalf of the government of The State of Tasmania to allegations which had been published by or had been attributed to the plaintiff concerning events surrounding:

(a)The proposed appointment of Mr Simon Cooper as a magistrate;

(b)Bargaining for the office of Solicitor-General of Tasmania;

(c)The plaintiff's summary termination from a position on the personal staff of the Hon Steve Kons MHA;

(d)The resignation of the Hon Steve Kons MHA as Attorney-General.

PARTICULARS

The instruction was given and confirmed orally in meetings between the Premier and the defendant which took place in Hobart, Tasmania in or about early April 2008.

(7)On 17 April 2008, the defendant participated in a press conference at Hobart Tasmania:

(a)In his capacity as Leader of the Government in the Legislative Council of Tasmania;  and

(b)For and on behalf of the government of The State of Tasmania.

(8)The press conference alleged in paragraph 7 above, was the press conference alleged in paragraph 6 of the plaintiff's Amended Statement of Claim in this proceeding.

(9)The defendant participated in the press conference alleged in paragraph 7 above pursuant to the Premier's instruction referred to in paragraph 6 above.

(10)Insofar as it may be found that the publication of:

(a)The first matter complained of in the plaintiff's Amended Statement of Claim;

(b)The second matter complained of in the plaintiff's Amended Statement of Claim.

involved the publication of any defamatory imputation of and concerning the plaintiff (which is expressly denied by the defendant), the third party was and is liable for any such publication.

(11)In the circumstances alleged in paragraphs 1 and 6-10 above, the third party is a tortfeasor which is, or if sued by the plaintiff would be, liable to the plaintiff in respect of the loss alleged by the plaintiff in his amended Statement of Claim."

1. Particulars of the content of the instructions issued by the Premier, as referred to in par 6, were requested.  The defendant, however, in providing his particulars has not asserted that the Premier composed or approved of the words which he uttered or authorised another to do so.  There is no assertion that the Premier encouraged the defendant, in general terms, to use defamatory or excessive language or acted with malice. In short, it is the mere fact that the defendant was instructed by the Premier to make public comments on the matters referred to in par 6, which is relied upon by the defendant to show the extent of the State's responsibility, as compared to his own, for the plaintiff's damage. 

1. Counsel for the State says that the pleading is defective in that it lacks clarity by failing to disclose whether the alleged liability of the State for the defamation is vicarious or direct.  He says that it is important to know.  If the State is blameless, its potential liability to the plaintiff being solely vicarious, then it may be that if the plaintiff had sued and recovered against the State, the state would have been entitled to a complete indemnity from the defendant.  Rolls Royce Industrial Power (Pacific) Ltdv James Hardie (2001) 53 NSWLR 626 at pars 70 and 132 – 143 supports this contention. This being so, if the liability is solely vicarious, the defendant may have no viable claim against the State. On the other hand, if the liability of the State is direct, rather than vicarious, then the respective degrees of responsibility for the damage will have to be considered to determine what, if any, contribution is just and equitable.

1. The plea is that the State instructed the defendant to make public statements on its behalf.  Counsel for the defendant says that by so doing the State is both vicariously liable for the tortious conduct of its agent and directly liable as a person instrumental in the publication.  Counsel submitted that the application brought by the State is, accordingly, misconceived because no question of alternative bases for liability, and hence no uncertainty, arises.  The character of the liability, he says, is dual. 

1. An example of the vicarious liability of a principal for the defamatory publications of an agent, made without the principal's knowledge or approval, can be found in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 45 CLR 41. There a life insurance agent had been dismissed by the plaintiff and commenced working for the defendant. He uttered slanders in the course of attempting to induce customers of the plaintiff to transfer their business to the defendant. In particular, he imputed that the plaintiff was insolvent. At 50 Dixon J (as he then was) said:

"If the view be right which I have already expressed, that the 'agent' represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion."

1. Plainly, if the facts pleaded are made out they will be sufficient to establish that the State, if sued, would have been vicariously liable to the plaintiff.  If, however, the sole basis for the State's liability is vicarious, then the contribution proceedings may be an exercise in futility for the reasons already referred to. 

1. But, counsel for the defendant says that the liability of the State to the plaintiff, if sued, would also have been direct.  He referred to Webb v Bloch (1928) 41 CLR 331. There Isaacs J said at 365:

"S Pearson & Son Ltd v Dublin Corporation (1907) AC 351 is rightly considered by text-writers (as Fraser on Libel and Slander, 6^th ed, at p 269;  Gatley on Libel and Slander, at p 409;  Spencer Bower on Actionable Defamation, 2^nd ed, at p 265) an authority for the position that principal and agent inter se are principals in relation to the person defamed.  … In the case cited Lord Loreburn LC said at p 354:  'The principal and the agent are one, and it does not signify which of them made the incriminated statement or which of them possessed the guilty knowledge.'  Lord Halsbury agreed, and said at p 359: 'It matters not in respect of principal and agent (who represent but one person) which of them possesses the guilty knowledge or which of them makes the incriminating statement.  If between them the misrepresentation is made so as to induce the wrong, and thereby damages are caused, it matters not which is the person who makes the representation or which is the person who has the guilty knowledge.'"

1. Webb v Bloch is authority for the proposition that in cases of vicarious liability, where several defendants are charged with joint defamation and express malice is proved against one only, that malice will be fatal to the success of defences dependant upon good faith claimed by all or any of the other defendants:  Dougherty v Chandler (1946) 46 SR (NSW) 370 at 375 – 376. It is not authority for the proposition that a principal who does not, specifically or generally; suggest, encourage, authorise or approve the publication of defamatory words incurs a liability which is other than vicarious.

1. Counsel for the defendant also referred to De Jong v State of Victoria (2006) VSC 274 and Coulthard v State of South Australia (1995) 63 SASR 531. In De Jong the allegation was that the defamatory information was conveyed to several television stations by the defendant's employee.  It was held that this was a sufficient plea against the defendant and that there was no requirement to plead the actual words spoken by the employee to the publishers.  In Coulthard the State held a report of a meeting which contained defamatory imputations against the plaintiffs.  The report was leaked, but there was no evidence that it was leaked by an employee of the State acting in the course of the employment.  The State was therefore not vicariously liable for the publication.  Neither of these cases would seem to support the defendant's contention that the State is directly liable for any defamation uttered by him merely because he had been asked to be a spokesman.

1. It may be that the defendant's claim for an indemnity, as presently framed, is hopeless.  I do not need to determine that matter at this stage. 

1. All that I have been asked to decide is whether the pleading at pars 6 and 11 should be struck out as embarrassing for failure to disclose, with clarity, whether the claim for the indemnity is based upon a vicarious liability of the State for the defendant's conduct in publishing the allegedly defamatory words or whether the claim is based on an asserted liability which arises directly from wrongful conduct by the State.

1. Counsel for the State relies upon r258 which authorises a judge to strike out "… in any … pleading any matter that (a) may be unnecessary or scandalous; or (b) may tend to prejudice or delay the fair trial of the proceeding". The rule is there solely to ensure compliance with the rules of pleading: Meckiff v Simpson (1968) VR 62 at 70. If there is compliance no occasion to strike out arises.

1. The cardinal rule of pleading is r227(1)(b) which relevantly is as follows:

"(1)      A pleading is to –

…

(b)contain only a statement of all the material facts in summary form on which the party relies …"

1. Rules may be made requiring the pleader to make clear the claimed legal consequences.  See, for example, Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 at 142 – 143. However, such rules do not exist here. The rule in this jurisdiction is that the pleading is to contain only the material facts. The legal consequences which will follow, if pleaded facts are proven at trial, is not a matter for necessary incorporation in the pleadings: In Konskier v B Goodman Ltd (1928) 1 KB 421 Scrutton LJ said in relation to pleaded facts at 427: "But a plaintiff is not now bound to state the legal effect of the facts on which he relies; he is only bound to state the facts themselves …". In respect of a rule equivalent to r227(1)(b) Martin J in Creedon v Measey Investments (1988) 91 FLR 318 at 320 adopted the statement by Williams in Civil Procedure in Victoria, obviously taken from Konskier, that:  "The pleader is not bound to state the legal effect of the facts upon which he relies;  he is only bound to state the facts themselves."  It follows that the fact, if it be the fact, that the plea does not, by its terms, clearly show whether the liability alleged is vicarious or direct or both does not amount to a breach of the rules of pleading.  There being no breach of the type asserted by counsel for the State there will be no order, on this application, striking out the pleading.

1. The application is dismissed.