Crosby v Kelly

Case [2013] FCA 1343

FEDERAL COURT OF AUSTRALIA

Crosby v Kelly [2013] FCA 1343

Citation: Crosby v Kelly [2013] FCA 1343
Parties: LYNTON CROSBY and MARK TEXTOR v MICHAEL KELLY
File number: ACD 70 of 2011
Judge: RARES J
Date of judgment: 11 December 2013
Catchwords:

DEFAMATION – defences of justification, partial justification and contextual truth under ss 135, 136 of Civil Law (Wrongs) Act 2002 (ACT) – common law defences of justification and partial justification – defence of contextual truth under s 136 – whether general imputation can be “another imputation” pleaded under s 136 or at common law in answer to imputation to same effect but limited to specific instance in matter complained of

DEFAMATION – pleadings – particulars of justification and contextual truth – necessity for precision – whether particulars of matters occurring after publication can be relied on

PRACTICE AND PROCEDURE – abuse of process – whether defence of qualified privilege should be struck out because not pleaded earlier when respondent challenged Federal Court’s jurisdiction in Full Court

Legislation:

Civil Law (Wrongs) Act2002 (ACT) Ch 9, ss 118(2), 120, 135, 136, 139A
Defamation Act 1974 (NSW) s 16
Defamation Act 2005 (NSW) s 26
Federal Court of Australia Act 1976 (Cth) s 25(6)
Judiciary Act 1903 (Cth) s 39B(1A)(b)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3)
Report of the Law Reform Commission on Defamation (1971) New South Wales LRC 11

Gately on Libel and Slander (11th ed:  2008)
Odgers on Libel and Slander (5th ed:  1911) 
Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 applied
Ange v Fairfax Media Pty Ltd [2010] NSWSC 645 distinguished
Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 applied
Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 applied
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Crosby v Kelly (2012) 203 FCR 451 referred to
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 applied
Godman v Times Publishing Co Ltd [1926] 2 KB 273 applied
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 distinguished and applied
Kelly v Crosby [2013] HCA Trans 17 referred to
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to
MacGrath v Black (1926) 95 LJKB 951 referred to
Maisel v Financial Times Limited [1915] 3 KB 336 referred to
Maisel v Financial Times, Lim (No 1) (1915) 84 LJKB 2145 applied
McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 applied
Plato Films Ltd v Speidel [1961] AC 1090 applied
Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 applied
Williams v Spautz (1992) 174 CLR 509 applied
Wootton v Sievier [1913] 3 KB 499 applied
Date of hearing: 3 December 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 46
Counsel for the Applicants: Mr P Gray SC with Dr G Dempsey
Solicitor for the Applicants: Colquhoun Murphy
Counsel for…

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Details
AGLC
Crosby v Kelly [2013] FCA 1343
Case
[2013] FCA 1343
Decision Date

CaseChat Overview and Summary

The Federal Court considered the case of Crosby v Kelly, a defamation dispute between the plaintiffs, Crosby and Textor, and the defendant, Dr Kelly. The court addressed several issues, including the nature of the defence of contextual truth under the Civil Law (Wrongs) Act 2002, the necessity for precision in pleadings concerning justification and contextual truth, and the appropriateness of striking out a defence of qualified privilege. The court found that the plaintiffs had succeeded in establishing that the general imputation of hypocrisy did not arise from the specific matter complained of and that the word “moralising” in the matter complained of was neutral and did not convey an imputation of hypocrisy. The court also held that the particulars of justification and contextual truth must be precise and that matters occurring after publication could not be relied upon. The court determined that the power to deal with an abuse of process was not an appropriate means to deal with errors of judgment or oversight by a party in the conduct of a case.

The court ruled that the defence of qualified privilege should not be struck out because it was not pleaded earlier when the respondent challenged the Federal Court's jurisdiction in the Full Court. The court noted that the respondent had the right to file a defence raising any issue bona fide to answer the amended statement of claim filed by the plaintiffs. The court concluded that it was not appropriate to strike out, or preclude the respondent from relying on, the defence of qualified privilege. The court ordered the respondent to serve a draft amended defence on the plaintiffs by a specified date and to pay 50% of the plaintiffs' costs of the interlocutory application. The court also ordered that if the plaintiffs did not consent to the filing of the amended defence, the respondent would need to cause the proceedings to be relisted as soon as convenient for any outstanding issue to be determined.

Orders

Orders of the court

1. The respondent serve a draft amended defence on the applicants on or before 24 January 2014 in a form consistent with the reasons for judgment published on 11 December 2013.

2. The respondent pay 50% of the applicants’ costs of the interlocutory application filed on 20 September 2013.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ordinarily, the power of the Court to deal with an abuse of its process will not be an appropriate means to deal with what amounts to an error of judgment or oversight by a party in the conduct of a case. Of course, all depends on the circumstances as to whether that power should be used. But generally, such situations will give rise to other discretionary powers that the Court exercise in the ordinary course of managing litigation before it. The Court’s discretion to allow late amendments involves such a different juridical issue: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175. No such issue arises here because Dr Kelly had the right to file a defence raising any issue bona fide to answer the amended statement of claim filed by Mr Crosby and Mr Textor on 9 July 2013. I am not satisfied that it is appropriate to strike out, or preclude Dr Kelly from relying on, the defence of qualified privilege.Conclusion Dr Kelly should serve a draft amended defence on Mr Crosby and Mr Textor that reflects these reasons on or before 24 January 2014. That should particularise properly any basis for justifying any imputation on which he currently relies as being substantially true. If Mr Crosby and Mr Textor do not consent to the filing of that document Dr Kelly will need to cause the proceedings to be relisted as soon as convenient for any outstanding issue to be determined. In my opinion, each of the parties has had a measure of success on the application. Nonetheless, Mr Crosby and Mr Textor succeeded in obtaining, first, a concession, only at the hearing, that resulted in Dr Kelly abandoning one contextual imputation and, secondly, the striking out of the bulk of the particulars of justification. In my opinion, the fair result would be that Dr Kelly pay 50% of the applicants’ costs of the application .

Ratio Decidendi

Legal Principle Established

Messrs Crosby and Textor argued that the contextual imputations, that each was a hypocrite, did not arise from the matter complained of. They argued that the matter complained of did not, convey and was not capable of conveying, such imputations. That was because, first, they contended that the actual words of the matter complained of tied the sting, including any suggestion of the hypocrisy, to the introduction of push polling. They argued that the contextual imputations were too general and that, in its natural and ordinary meaning, the word “moralising” in the matter complained of was neutral as to the nature of any moral position taken by the person the word described. They contended that that word meant debating moral questions without commitment to a position and that this meaning would not allow an ordinary reasonable reader to arrive at a meaning of hypocrisy, as being conveyed by the matter complained of. They argued that a hypocrite was a person who pretended that he or she was something the person was not and that a moraliser was a person who merely discussed moral questions that were neutral in themselves. They argued that the matter complained of merely attributed to each of them the introduction of push polling into Australia and that it did not suggest that this act was inconsistent with anything on which either had been “moralising”. They contended that Dr Kelly had used the word “moralising” at the beginning of the matter complained of without suggesting that they had put forward any moral position and that only the second half had criticised their introduction of push polling. Thus, they submitted, there was nothing to suggest, in the natural and ordinary meaning of the matter complained of, that either was a hypocrite for introducing push polling.Contextual truth – consideration The cause of action for defamation under s 120 of the Civil Law (Wrongs) Act creates a new statutory cause of action, but the legal concept it involves is based on the common law concept of an actionable wrong for the publication of defamatory matter about a person. Thus, the publication complained of must convey one or more defamatory meanings, or imputations, of and concerning the person (whom I will call “plaintiff”). So, at common law, and under the Act, and its analogues, a plaintiff ordinarily will allege the imputation or imputations of which he or she complains as particulars of his or her crucial allegation that the defendant published defamatory matter about him or her: Gately on Libel and Slander (11th ed: 2008 ) at [28.20]; see too Odgers on Libel and Slander (5th ed: 1911) at 115-116. This understanding provides the context in which ss 135 and 136 operate, for each of those provisions entitles a publisher (or defendant) to allege, by way of defence, that a particular imputation is substantially true. The first of those defences, justification, is established by the defendant proving “that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true” (s 135). The second defence, contextual truth, also takes as its starting point “the defamatory imputations of which the plaintiff complains”. But s 136 operates differently to s 135. In order to establish the defence of contextual truth, the defendant must prove that:·the matter complained of carried one or more other defamatory imputations, in addition to those of which the plaintiff complains;·the contextual imputation(s) is or are substantially true; and·because of the substantial truth of the context imputation(s), the imputation(s) on which the plaintiff relies do not further harm his or her reputation.