Daniels v State of New South Wales (No 2)

[2014] NSWSC 1934

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Daniels v State of New South Wales (No 2) [2014] NSWSC 1934
Date of orders:	21 November 2014
Decision date:	21 November 2014
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application for an order pursuant to r 14.22(2) of the Uniform Civil Procedure Rules 2005 requiring the defendants to verify their defence refused.
Catchwords:	DEFAMATION – procedure – whether defendant should be required to verify defence – where plaintiff contends that defence contains allegations that are false
Category:	Procedural and other rulings
Parties:	Dr Christopher Sydney Daniels (plaintiff) State of New South Wales (first defendant) David Tooney (second defendant) Louise Manwaring (third defendant)
Representation:	Counsel: Plaintiff self-represented S Chrysanthou (defendants) Solicitors: IV Knight (Crown Solicitor for NSW) (defendants)
File Number(s):	2014/145430

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Dr Daniels, a teacher of mathematics, relating to the content of a report as to his teaching during a period of employment as a teacher at Mudgee High School in late 2013.

2. The current form of Dr Daniels' pleading is an Amended Statement of Claim filed on 22 September 2014.

3. There are three defendants to the claim, the State of New South Wales, Ms Louise Manwaring, the Principal of Mudgee High School at the relevant time and Mr David Tooney, the Head Mathematics Teacher at Mudgee at the relevant time.

4. The defendants have filed a single defence to the Amended Statement of Claim, dated 30 October 2014. The defence pleads a defence of substantial truth to the imputations relied upon by Dr Daniels.

5. By Notice of Motion filed 6 November 2014, Dr Daniels has sought an order pursuant to r 14.22(2) of the Uniform Civil Procedure Rules 2005 (NSW) requiring the defendants to verify their defence, including the identification of the defendant verifying each fact.

6. In support of the application, Dr Daniels swore an affidavit also dated 6 November 2014. However, much of the affidavit was objected to on the grounds that it was not admissible, being primarily in the form of submissions or contentions. I did admit a paragraph of the affidavit in which Dr Daniels deposes to the fact that, contrary to an allegation made in paragraph 38 of the defence the second defendant, Ms Manwaring, did not ever attend a single classroom lesson of the plaintiff to observe his lessons. The basis for the application in the face of that contention is that Ms Manwaring has committed the offence of attempting to pervert the course of justice and, accordingly, that there is an occasion for requiring the defendants to verify the pleading.

7. Rule 14.22(2) provides that pleadings in proceedings in the Supreme Court and the District Court must be verified by affidavit. However, r 14.22(1) creates an exception to that requirement for certain proceedings, including proceedings for defamation. Rule 14.22(1) provides:

(1) This Division does not apply to pleadings in proceedings for the recovery of damages for:

(a) defamation, or

(b) malicious prosecution, or

(c) false imprisonment, or

(d) trespass to the person, or

(e) death, or

(f) personal injury.

8. Ms Chrysanthou, who appears for the defendants, informed me that she had endeavoured to find some authority to explain the kinds of actions which, in that list, are carved out of the requirement for verification of the pleadings. She stated that she was not able to locate any relevant authority on that issue.

9. Ms Chrysanthou observed, however, that each of the kinds of actions referred to in the rule is a personal tort and that the rule appears substantially, if not completely, to cover the field of actions as to which it remains the case in this Court that they are conducted as Common Law trials, that is, the evidence is given on oath, orally, rather than being exchanged before the trial by way of affidavit.

10. That is an explanation which makes some sense of the absence of any requirement to verify a pleading in such a case, since in order to make good any allegation contained in such a pleading a party will necessarily have to prove it on oath or affirmation or otherwise by admissible evidence at the hearing.

11. The rule may thus be seen to serve the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) of facilitating the just, quick and cheap resolution of the real issues in the proceedings.

12. Ms Chrysanthou drew my attention to two decisions in which an order requiring verification under subrule (2) has been made. In Lazarus v Deutsche Lufthansa AG [1985] 1 NSWLR 188, Hunt J required a plaintiff to verify that part of a pleading which reflected an indulgence granted to the plaintiff that he was not required to name the persons to whom a slander was allegedly published. The reason he was not required to name them was because he said he was unable to do so. Justice Hunt evidently considered it appropriate, whilst allowing the indulgence, to require the plaintiff to verify that inability.

13. Secondly, in Templar v Britton [2013] NSWSC 1827, on the application of the defendants, I required a plaintiff to verify an amendment to the pleading of a slander where, in what I was satisfied could fairly be described as "an extraordinary development", the plaintiff had moved from pleading a matter complained of which did not name him (relying on extrinsic facts of identification) to alleging that both plaintiffs were in fact named in the oral publication. I held that the evolution of those pleadings warranted a departure from the default position under the Rules.

14. Dr Daniels submitted that his sworn affidavit in support of the present application establishes that the second defendant has, by pleading the matter referred to, committed a very serious criminal offence and that that is sufficient warrant for the making of an order requiring verification of the pleadings at this stage.

15. It is not uncommon, indeed it may probably be said to be almost universal, for pleadings in Common Law causes to join issue on a number of matters. If each of the allegations in the Statement of Claim was admitted by the defendant, there would be no occasion for the filing of a defence.

16. As Ms Chrysanthou pointed out in her submissions, in proceedings for defamation, where the elements of a plaintiff's claim are relatively simple, it is often the defence that raises substantive allegations of fact. The fact that the plaintiff disputes some of those allegations in the present case does not, in my view, take this case out of the ordinary.

17. Further, in my view, as I have already explained, the Rule serves the overriding purpose of the Act.

18. In my view, it would be an unwarranted cost and delay in the proceedings at this stage to pause to require the defendants to verify matters which have been included in the pleading, presumably on instructions from those representing the defendants.

19. Accordingly the application is refused.

20. However, I would observe, as submitted by Dr Daniels, that the particulars presently provided in support of the defence do not give an adequate indication of the facts, matters and circumstances relied upon in support of the truth defence to enable Dr Daniels to know the case he has to meet. Many are expressed by way of summaries or conclusions. For example, paragraph 42 of the defence says:

“The second defendant received complaints about the plaintiff's teaching style from other teachers, parents, students and the year advisor."

21. In order to know the case on truth which he has to meet, Dr Daniels is entitled to know the facts, matters and circumstances relied upon in support of that summary contention. There are many other examples that can be found in the defence.

22. Rather than visit upon the parties the cost and delay of requiring Dr Daniels to formulate a request for particulars, I consider it appropriate to direct the defendants at this stage to provide further and better particulars of the facts, matters and circumstances relied upon in support of the truth defence.

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Amendments

10 March 2015 - Details of Solicitor corrected