Chapman v Conservation Council of SA Inc & Ors No. Scgrg-98-758 Judgment No. S6973

[1998] SASC 6973

CHAPMAN v CONSERVATION COUNCIL OF
SOUTH AUSTRALIA INC & ORS
[1998] SASC S6973

Civil

Debelle J

1. This is an appeal by leave from a decision of a judge of the District Court striking out an action for defamation.  The learned judge had allowed an appeal from a master of that court dismissing the application.  The appeal is brought by the plaintiffs in this action.  It is more convenient to refer to the parties by their status in the action.

2. In the course of the controversy concerning the proposed construction of a bridge from Goolwa to Hindmarsh Island, a pamphlet was circulated and distributed in June 1994 in and about the district of Goolwa and Hindmarsh Island.  The pamphlet advanced a number of arguments against the construction of the bridge.  At the foot of the pamphlet was a box which contained the following statement:

   “If you want more information of want to help, get in touch with:

   The KUMARANGK Coalition

   C/- The Centre for Urban Ecology

   83 Halifax Street ADELAIDE  SA  5000

   Their direct phone line is: [phone]”

Immediately below the box, the following words appeared:

“This brochure was compiled and funded by concerned residents of Goolwa & Hindmarsh Island.  Printed locally by System Screen Print, Goolwa.”

The plaintiffs believe that the pamphlet defamed them. They instituted proceedings in the District Court claiming damages.  For the purpose of this appeal it is unnecessary to examine the content of the alleged defamation.  The defendants to the action are the Conservation Council of SA Inc (“the Conservation Council”), Friends of Goolwa and Kumarangk Inc (“the Friends”), Kumarangk Coalition, Gregory Philip Lundstrom and Christine Joan Lundstrom.  The Statement of Claim alleges that the Lundstroms carried on business as System Screen Print.  This appeal does not concern the allegations against the Lundstroms.

1. The Statement of Claim alleges that the Conservation Council and the Friends are members of the Kumarangk Coalition.  The Kumarangk Coalition is an unincorporated association.  It is sued pursuant to Rule 36.01(4) of the District Court Rules.  It is open to question whether Rule 36.01 overcomes the procedural difficulties in suing an unincorporated association in actions for defamation: London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 20. But it is unnecessary to stay with that question.

2. The appeal concerns paragraphs 1, 15 and 16 of the Statement of Claim which contain the allegations against the Conservation Council. The Conservation Council had sought from the plaintiffs particulars of the facts and matters upon which the plaintiffs relied for the allegations in paragraphs 15 and 16.  The plaintiffs did not provide the particulars requested.  The Conservation Council then applied for a further and more explicit pleading.  The plaintiffs filed a More Explicit Statement of Claim.  It contained an amended paragraph 16.   Paragraphs 1, 15 and 16 of that Statement of Claim read as follows:

   “1..... The first Defendant (“the Conservation Council”) is and was at all material times incorporated pursuant to the Associations Incorporation Act.

   15.The said pamphlet was:

   (a).... Published or caused to be published by the Kumarangk Coalition.

   (b)    Published or caused to be published by the Conservation Council and the Friends by reason of the fact of their membership of the Kumarangk Coalition as an unincorporated association.

   (c)... Printed and/or published (or caused to be) by the fourth and fifth Defendants.

   16.... Alternatively, if the said pamphlet has not been published or caused to be published by any one or more of the Defendants, then such Defendant or Defendants is liable in respect to the publication of the said pamphlet by reason that he, she or it took part in, or procured, the publication of the same.”

The Conservation Council then applied to strike out paragraphs 1, 15 and 16 in so far as they refer to it, for an order that the claim against it be dismissed, and for an order that summary judgment be ordered in favour of the Council.  By that time the Conservation Council had already filed its defence.  The Council’s application was dismissed by the master of the District Court.  On appeal, the application was allowed by a judge.  The learned judge ordered:

1...... That paragraphs 1, 15 and 16 of the More Explicit Statement of Claim be struck out in so far as they refer to the first named defendant.

1. That the proceedings, in so far as they relate to the first named defendant, be dismissed.

2. That summary judgment would be given in favour of the first named defendant.

I deal first with the issues arising out of paragraph 15.

Paragraph 15

1. Paragraph 3 of the Statement of Claim pleads that the Coalition Council and the Friends are members of the Kumarangk Coalition.  For the purposes of this application, the facts alleged in paragraph 3 must be accepted. 

2. Two things might be noted about paragraph 15.  The first is that it is not clear whether the separate sub-paragraphs are pleaded as alternatives or cumulatively or are intended to stand independently of each other as separate allegations.  It seems that they are intended to be three separate allegations and I will proceed on that footing.  The draftsman could have made the position much clearer.

3. Secondly, having pleaded in paragraph 15(a) that the Kumarangk Coalition published the pamphlet, paragraph (b) alleges that, by reason of their membership of the Kumarangk Coalition, the Conservation Council and the Friends either published the pamphlet or caused it to be published.  The plea is bad.  The fact that the Conservation Council is a member of the Kumarangk Coalition does not, standing alone, mean that it participated in the publication of the pamphlet.  Even if it is assumed that Rule 36.01 enables the plaintiffs to sue the Kumarangk Coalition, the plaintiffs must prove which members of the Kumarangk Coalition were involved in the publication.  As Swinfen Eady LJ said in Mercantile Marine Service Association v Toms (1915) 2 KB 243 at 246 to 247, when considering the applicability of the rule relating to representative orders:

   “The action is for libel, and the plaintiffs must prove who published the libel, and prima facie only those who have published it either by themselves or by their servants or agents or have authorised this publication are liable.  The various members of this association may be in a wholly different position.  If the members of the management committee were sued, and if in fact they had authorised the publication of the libel, they could raise their defences as might be open to them. ...  The other members of the association, if sued, might say that, however defamatory the words complained of might be, they did not authorise their publication:  that they were on the high seas and knew nothing about the matter.”

An unincorporated association has no separate legal personality.  It is not capable, therefore, of publishing nor authorising the publication of a libel:  London Association for the Protection of Trade v Greenlands Ltd (supra) at 20. Thus, if an unincorporated association publishes a libel, the defendants are those who published the libel or caused it to be published. Other members of the association are not liable simply by reason of their membership.

1. As paragraph 15(b) pleads publication by the Conservation Council by reason of its membership of the Kumarangk Coalition, the plea must fail. The learned judge was, therefore, correct in concluding that the plea in paragraph 15(b) was bad.  Paragraph 15(b) must, therefore, be struck out.

Paragraph 16

1. I turn to deal with the issues arising out of paragraph 16 of the Statement of Claim.  The learned judge held that paragraph 16 suffered the same defects as paragraph 15(b) and struck it out.  However, the issues relating to paragraph 16 are different.  Paragraph 16 is a bare assertion that the defendants took part in or procured the publication of the pamphlet.  The plaintiffs undertake to provide particulars of this allegation after discovery.

2. On its face, the plea appears to overlap the plea in paragraph 15(b).  But the difference is that paragraph 15(b) pleads publication of the defamation by the Conservation Council by reason of its membership of the Kumarangk Coalition whereas paragraph 16 stands independently of paragraph 15 and pleads publication by each of the defendants named in paragraph 15.  There is room for improvement in the drafting of paragraphs 15 and 16.

3. The Conservation Council contended that paragraph 16 should be struck out because it does not plead the material facts upon which the plaintiffs rely or give sufficient particulars thereof:  see Rule 46.04(1)(b) and (f).  The Council contends that there is nothing in the Statement of Claim which connects it with the publication of the pamphlet.  It says that the plaintiffs are in effect seeking pre-action discovery and should not be permitted to do so.

4. In an affidavit sworn in support of the application of the Conservation Council to strike out the Statement of Claim, Ms O’Grady deposed that she had been employed by the Council some five years prior to February 1998 and that in that time she had attended meetings of the executive committee.  She deposed that she had reviewed all minutes of those meetings and of the Council since 1993 and the minutes disclose no decision by the executive committee to become a member of the Kumarangk Coalition.  She also deposed that, to the best of her knowledge, the Conservation Council did not take part in the publication of the pamphlet or procure its publication.

5. The plaintiffs respond by contending that there is evidence of links between the Kumarangk Coalition and the Conservation Council.  They point to the following facts proved in three affidavits:

6. That since mid 1996 the office of the Kumarangk Coalition has been at 120 Wakefield Street, Adelaide.

7. That since mid 1996 the office of the Conservation Council has also been at 120 Wakefield Street, Adelaide.

8. That on 9 December 1997 Mr Palyga visited the Internet website of the Kumarangk Coalition where the address of the Coalition was given as 120 Wakefield Street, Adelaide and that he printed out from the website a page, the first paragraph of which read as follows:

   “The Kumarangk Coalition is an Adelaide-based group whose members are drawn from a number of community, church,  non-government and union organisations.  The Kumarangk Coalition came together initially to support the protection of Aboriginal heritage, the environment and improvement of planning processes, all of which were threatened by the building of the Hindmarsh Island Bridge.  The Coalition disbanded when the importance of the area to the Ngarrindjeri people was affirmed by the Federal Minister for Aboriginal and Torres Strait Islander Affairs under Federal Aboriginal heritage legislation.  With the immediate threat to the area contained efforts continued to find ways of building on the many positive relationships that formed in the preceding months and years.”

   Presumably, the reference to the organisations is seen by the plaintiffs as some oblique reference to the Conservation Council.  I do not comment on that.

9. Service of the summons was accepted on behalf of both the Kumarangk Coalition and the Conservation Council by the same person.

10. That Ms Michelle O’Grady is an executive officer in both the Kumarangk Coalition and the Conservation Council.  Ms O’Grady is the person who swore the affidavit in support of the Conservation Council’s application to strike out the action.

The affidavits sworn by Ms O’Grady on behalf of the plaintiffs are admissible on the application to strike out the action. 

1. To summarise, the plaintiffs acknowledge that paragraph 16 lacks the particularity required by Rule 46 but say that they cannot supply the particulars until after discovery. There is some very slight evidence to suggest some link between the Kumarangk Coalition and the Conservation Council.  Those facts will have to be pleaded but I think that they can wait until after discovery when the plaintiffs hope to be able to provide further particulars.  An assertion that the pleader is unable to furnish particulars until after discovery is not necessarily a bad plea: Electricity Trust of South Australia v Union Insurance Company Ltd (9 July 1997 unreported, Perry J, Judgment No S6241).  This is an instance of the fact that questions of timing of discovery and completion of the pleadings are not always easy to resolve.  In appropriate cases discovery can be ordered before the close of pleadings.  I think that this is one of those cases where it would have been better to have adjourned the application to strike out paragraph 16 until after discovery had been completed and, in the meantime, to allow the impugned paragraph 16 to stand.  This will not cause undue prejudice to the Conservation Council which knows that the case against it is that it was party to the publication of the alleged libel.  The absence of particulars of that allegation will not inhibit discovery or be likely to lead to argument as to the scope and adequacy of discovery.  After discovery the Conservation Council may require the plaintiffs to file a more explicit Statement of Claim and, if necessary, then apply to strike out the Statement of Claim.

2. In order to obtain an order for summary judgment, the Council must show that, on any view of the facts or law, the plaintiffs could not succeed in their action.  That is a very demanding test.  There is some evidence, albeit extremely slight, which might enable the plaintiffs to succeed.  This is not a matter where it is appropriate to order summary judgment in favour of the Conservation Council.

3. For these reasons, I would allow the appeal in respect of paragraph 16.

Conclusion

1. For these reasons, I would set aside the orders made by the learned judge and in lieu thereof make the following orders:

2. That paragraph 15(b) of the More Explicit Statement of Claim be struck out.

3. That the application to strike out paragraph 16 be adjourned pending discovery.

I will hear the parties as to the orders as to costs in respect of the proceedings before the master, the learned judge and of this appeal.