Clark v Richards & Anor - [2002] WASC 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CLARK -v- RICHARDS & ANOR [2002] WASC 49

CORAM: McLURE J

HEARD: 7 MARCH 2002

DELIVERED : 20 MARCH 2002

FILE NO/S: CIV 2226 of 1997

BETWEEN: ANNE MARY CLARK
Plaintiff
AND
KATHLEEN THERESA RICHARDS
First Defendant
DONALD JOHN RICHARDS
Second Defendant

Catchwords:

Defamation - Application to amend defence to include a plea of justification or a Polly Peck defence - Pleading requirements - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr J D MacLaurin
First Defendant             :     In person
Second Defendant         :     In person

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     In person
Second Defendant         :     In person

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

Nil

Case(s) also cited:

Nil

McLURE J: This is a defamation action in which the defendants are not legally represented. They wish to amend their defence to include a plea of justification.
The relevant history is as follows. The action came before me on 30 July 2001 for directions. At that directions hearing the defendants informed the court of their wish to amend the defence to plead justification. Justification means truth in the law of defamation in this State. The words (justification and truth) are used interchangeably. I informed the defendants that they would need to make an application supported by an affidavit and a minute of proposed amended defence. In August 2001 they filed and served a minute of amended defence dated 10 August 2001 and an affidavit. As there was no application to the Court to have the matter listed for hearing there was some considerable delay before the application was argued. That occurred on 14 February 2002.
I refused the application for leave to amend because the proposed amended defence was technically and substantively defective to such an extent as to prejudice the plaintiff in the conduct of her action. For the purpose of explaining my decision, I outlined what was required for a plea of justification and a Polly Peck defence. The technical and highly complex pleading rules in the law of defamation are a significant challenge for legal practitioners with no experience in this area of the law. I do not underestimate the difficulties faced by unrepresented litigants. Accordingly, I gave the defendants liberty to make a further application to amend their defence to include a justification plea. The defendants then applied for leave to amend their defence in accordance with a minute of amended defence dated 1 March 2002. That application was heard by me on 7 March 2002.
Once again, the proposed amendments were technically defective. In particular, the proposed amended defence included evidence as well as argument and submissions. However, I formed the view and advised counsel for the plaintiff accordingly that I would grant leave to amend the defence notwithstanding the failure to comply with technical pleading rules provided the plaintiff would suffer no real prejudice as a result. Applying that test, counsel for the plaintiff confined his objections to pars 3(a)(b)(c)(d), 4(n)(o)(p)(q)(r)(s)(t)(u), 12, 13, 15(d), 16 and parts of 17 of the proposed amended defence.
Before dealing with the plaintiff's objections it is necessary to say something about the plaintiff's claims. The causes of action the subject of the plaintiff's claim include an action for:
(a)assault, battery and trespass alleged to have occurred on about 25 October 1997 at Osprey Drive, Yangebup;
(b)slander which is alleged to have occurred on about 25 October 1997. The subject matter of the slander was the alleged assault, an allegation that the plaintiff had been spreading rumours about a Mr Bankowski as well as a refusal by the plaintiff to return tapes to the defendants;
(c )libel said to be contained in a letter published by the defendants in October 1997 to the West Australian Ice Skating Association (WAISA), the West Australian Ice Skating Coaches Association (WAISCA), and to the Australian Professional Skaters Association (APSA) in New South Wales.
The imputations relied on by the plaintiff as arising out of the slander are that the plaintiff:
1.had committed an assault upon the first and second defendants;
2.was a violent person;
3.was a thief;
4.was not fit to be an ice skating coach.
The plaintiff does not plead all of the contents of the letter complained of the subject of the libel claim. Further, the plaintiff says that the imputations arising from the libel were that the plaintiff:
1.had violently assaulted the first and second defendants;
2.was a violent person;
3.was a malicious gossip who had spitefully and maliciously been spreading damage and rumours about another ice skating coach;
4.was unfit to hold the position of a professional ice skating coach;
5.was a thief;
6.had behaved unprofessionally in relation to her coaching of Gillian Richards;
7.had trespassed upon the defendants' property.
The plaintiff claims aggravated, exemplary and special damages for defamation.
The plaintiff objects to the specified aspects of pars 3 and 4 of the proposed defence on the ground that they contain material which is irrelevant to the plaintiff's claims which has the potential to raise false issues and thereby greatly enlarge the time required for the trial of the action. I agree with that submission. Accordingly, I will not grant leave to amend the defence to include those aspects of pars 3 and 4 objected to by the plaintiff. However, I wish to make it clear that this ruling is not in any way determinative in advance of any question of admissibility of evidence which may arise at trial. Whether or not a matter is relevant at trial will depend upon the course of the evidence.
Paragraphs 12, 13 and 16 of the proposed amended defence appear to be the avenue by which the defendants intend to plead justification. Paragraph 12 is a rolled up plea of qualified privilege and an attempt to plead justification to the libel claim. The defendants do not plead justification to the imputations said to arise from the slander. I am unsure whether or not that is intentional. Paragraph 12 responds to par 21 of the statement of claim. Paragraph 21 of the statement of claim pleads the publication of the words complained of in the letter the subject of the libel claim. The defendants set out in full the terms of the letter complained of. No objection is taken to that course. However, the defendants also plead in par 12 that the contents of the letter are true and justifiable. That plea is repeated in par 16 of the proposed defence which responds to par 25 of the statement of claim concerning the plaintiff's aggravated and exemplary damages claim. Paragraph 25.1 is to the effect that the first and second defendants knew that the contents of the letter the subject of the libel claim were false. Paragraph 16 of the proposed defence also contains particulars of the truth of the contents of the letter, including parts of the letter not complained of by the plaintiff.
Paragraph 13 of the proposed defence responds to the imputations relied on by the plaintiff. It emerges with reasonable clarity from par 13 that the defendants say that the imputations complained of by the plaintiff do not arise from the terms of the letter. However, the plea is ambiguous because the paragraph also contains a number of facts which on one view may be interpreted to be a plea of justification to at least one of the plaintiff's imputations. After hearing from the defendants it appears that what they intended was to justify what they say are the imputations arising from the terms of the letter.
The plaintiff submitted, and it is the case, that the defendants have failed to properly plead the defence of justification or a Polly Peck defence. The defendants have proceeded on the understandable but incorrect assumption that the defence of justification is proved by proving the truth of the contents of the letter which contains the words complained of. That is not so.
A defendant who wants to plead justification can do so in one of two ways. The first way is to plead that one or more of the imputations which the plaintiff says arise from the words complained of are true in substance and in fact. Imputations means inferences or meanings. That is, the defendants must plead and prove the truth of the imputations which the plaintiff says arise from the contents of the letter. A defendant who pleads justification must also state all matters, facts and things on which the defendant relies in support of its claim that the imputations pleaded by the plaintiff are true. It is often the case that some or all of the facts relied on to support the imputations are set out in the words complained of. However, that is coincidental. The facts relied on to prove truth must be set out in full in the pleading and be proved at trial. Once the facts have been set out the plaintiff and the court can then consider whether those facts are capable in law of establishing the truth of the imputations.
Even if a defendant is of the opinion that the imputations relied on by the plaintiff do not arise from the words complained of, a defendant is still entitled to plead justification if it has the necessary factual foundation to do so.
If a defendant takes the view that the imputations pleaded by the plaintiff do not arise from the words complained of and that they are not in the position to justify the plaintiff's imputations, there is another course open to them. That course is known as a Polly Peck defence. What that means is that a defendant can plead the imputations (of meanings) which they say arise from the words complained of and then justify those imputations. Thus, a defendant wishing to rely on a Polly Peck defence must:
(a)plead the imputations which they say arise from the words complained of;
(b)plead that those imputations are true in substance and in fact;
(c)give full particulars of the facts relied on to support the plea of truth.
However, there are a number of technical limitations on the pleading of such a defence. The first limitation is that the imputations must relate to a distinct charge arising from the words complained of. The second limitation is that a Polly Peck imputation cannot be more injurious or damaging than the plaintiff's imputations. The third limitation is that the scope of what can be pleaded in a Polly Peck defence is affected by the extent to which the tribunal of fact may depart from the imputations pleaded by the plaintiff and yet still find in the plaintiff's favour.
The plaintiff also objects to par 15(d) of the defence. Paragraph 15 is the defendants' response to the plaintiff's standard plea of general damages arising from the publications. I accept the plaintiff's submission that the matters raised in sub‑par (d) have a significant potential to raise false issues which would prejudice the efficient conduct of the action.
At the hearing the plaintiff's counsel foreshadowed that she proposed to delete par 26.2 of the statement of claim which concerns the contents of a letter written by the defendants then solicitor, J Parry & Co. Further, her counsel indicated that he wanted an opportunity to obtain instructions on whether to delete par 25 (or part of that paragraph) from the statement of claim. I will not deal with the plaintiff's objections to pars 16 and 17 of the proposed defence until the plaintiff's intentions are known.
At the hearing of the application for leave to amend the defence I informed the parties that I proposed to give the defendants another opportunity to plead a justification defence. I do so because I am not satisfied that a justification or Polly Peck defence is unarguable on the defendants' version of the facts.
In answer to submissions made by the plaintiff seeking the costs of various applications, the defendants have on a number of occasions informed the Court that they do not have the financial resources to pay any costs orders made against them. The defendants say they are unable to access professional help in achieving their stated aim of pleading a justification defence for the same reason. It is because the defendants are not legally represented that I have given them this further indulgence. However, indulgences to the defendants are to the prejudice of the plaintiff. Any further indulgences are unlikely.
Accordingly, I propose to order that the defendants' application for leave to amend their defence in accordance with the minute dated 1 March 2002 is refused. Any further application to amend must be filed and served within seven days of the date of these orders.