Daniels v State of New South Wales (No 3)

[2015] NSWSC 191

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Daniels v State of New South Wales (No 3) [2015] NSWSC 191
Hearing dates:	13 February 2015
Date of orders:	13 February 2015
Decision date:	13 February 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application to strike out paragraphs 37 to 47 of the defence rejected
Catchwords:	DEFAMATION – defences – adequacy of particulars of defence of truth
Legislation Cited:	Defamation Act 2005 (NSW), s 30 Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Category:	Procedural and other rulings
Parties:	Dr Christopher Sydney Daniels (plaintiff) State of New South Wales (first defendant) Louise Manwaring (second defendant) David Tooney (third defendant)
Representation:	Counsel: Plaintiff (self-represented) S Chrysanthou (defendants) Solicitors: I V Knight (Crown Solicitor) (defendants)
File Number(s):	2014/145430
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Dr Daniels, a mathematics teacher, against the State of New South Wales and two individuals arising out of the publication of a report concerning Dr Daniels' performance during a short period of casual teaching at Mudgee High School.

2. The imputations complained of by Dr Daniels are, in summary, that in each of six elements of the professional teaching standards applicable to New South Wales teachers, his performance was either unsatisfactory or needed significant improvement. To that claim, the defendants have pleaded defences of justification, honest opinion and qualified privilege both at common law and under s 30 of the Defamation Act 2005 (NSW).

3. On 21 November 2014, at a time when the proceedings were before me in the Defamation List, I directed the defendants to provide further and better particulars of the facts, matters and circumstances relied upon in support of the defence of truth. The particulars contained in the existing pleading, the defence to the Amended Statement of Claim filed 30 October 2014, are contained at paragraphs 35 to 47 of the pleading. Pursuant to my direction, the defendants sent a letter to Dr Daniels dated 23 December 2014 providing further particulars.

4. By Notice of Motion dated 2 February 2015, supported by an affidavit sworn on the same date by himself, Dr Daniels seeks an order that paragraphs 37 to 47 of the defence be struck out. The application invokes rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), which provides as follows:

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

5. Dr Daniels' objections to the parts of the defence sought to be struck out fall into three broad categories. First, he contends that some of the particulars contain allegations which are both bizarre and false. The affidavit relied upon in support of the application asserts that, fortunately for Dr Daniels (as he puts it), the incident referred to was witnessed by an entire class of students, being a total of more than 25 witnesses. In other words, it appears to be asserted that Dr Daniels will be able to prove the falsity of the defendants’ version of events at the hearing.

6. Separately, Dr Daniels relies upon the fact that, in some instances, the conduct referred to in the particulars was the subject of investigation by the principal, Ms Manwaring, who is the second defendant in the proceedings. Dr Daniels contends that he was informed by telephone in each of a number of instances that the investigation had completely cleared him "of any professional misconduct or lack of professionalism in the matter".

7. As to the contention that the allegations are bizarre and false, the application is misconceived. It is not for this Court in an interlocutory application under rule 14.28 to determine the factual dispute raised by the pleadings or factual issue raised by the pleadings. Dr Daniels noted that under rule 14.28(2) the Court may receive evidence on the hearing of an application for an order under subrule (1). That rule, however, is not to be construed so as to substitute for a party's right to have issues of fact determined at a final hearing an interlocutory or summary process of the kind contemplated by the orders that can be made under rule 14.28.

8. Rather, it merely reflects a recognition of the fact that there will be occasions on which, in order to reveal that a pleading discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay in the proceedings or otherwise is an abuse of the process of the Court, it may be necessary for a party to adduce evidence. The rule makes plain that that course is permitted. It is not intended to supplant a party's entitlement to have the issues of fact in the proceedings determined at a final hearing.

9. As to the contention that in some instances the conduct particularised was the subject of a mandatory comprehensive investigation the result of which was to clear Dr Daniels of any professional misconduct or lack of professionalism, the first proposition to note is that, as submitted by Ms Chrysanthou, the findings of any such investigation would not be admissible at the hearing of these proceedings. Further, assuming that the investigations have resulted in the findings or conclusions stated in the affidavit, which is the appropriate assumption in the present application since it is uncontested, it does not follow that the same underlying factual issues may not be relied upon by the defendants in support of a truth defence in the present proceedings.

10. There is, in my view, a distinction between a finding that a person has engaged in conduct revealing a lack of professionalism and an assertion that there is room for improvement in a person's professionalism. A finding of the former kind does not preclude the latter contention.

11. Separately, I note that the particulars of truth are repeated in support of the defence of qualified privilege (see paragraph 48(h) of the defence). For that purpose, the defendants rely not upon the asserted underlying truth of the allegations but, rather, upon the fact that the second defendant, Ms Manwaring (who is the author of the report) had information of the kind particularised or as to the matters particularised.

12. In any event, as noted by Ms Chrysanthou, the present application is not directed in terms to the particulars provided in the letter dated 23 December 2014, but rather to the relevant paragraphs of the truth defence, as particularised in that letter.

13. I am not persuaded on the strength of the submissions in relation to those specific paragraphs, 3(a), (b) and (c), that they sustain the application.

14. A separate complaint taken by Dr Daniels is that the remaining paragraphs of the particulars, leaving aside the specific complaint directed to paragraphs 3(a), (b) and (c), do not contain "a single particular" that would allow Dr Daniels to identify the case he has to meet at trial. It may be accepted as to those particulars that there is a degree of generality. For example, a number of the particulars amount to a contention that various parents on unknown dates between 5 August 2013 and 6 September 2013 made unspecified complaints to various teachers as to the plaintiff's teaching style, which were reported to the principal.

15. Dr Daniels submitted that allegations of such generality should not be allowed to continue to the jury. It is well established, however, that a defendant can be required to do no more than to provide the best particulars he or she is able to provide.

16. Ms Chrysanthou, who appears for the defendants, indicated that an allegation in the terms I have just summarised represents on those matters the best particulars the defendants are presently able to provide. It is clear enough from a consideration of the particulars taken as a whole that, taking particular (j) in the letter as an example, the evidence that the defendants will seek to adduce, if it is allowed, from Michelle Hutchins, identified as the year 8 advisor, will be no more specific than that various parents complained to her on various dates that the plaintiff "treated his students like babies". Whether that evidence is allowed to be given in that form in support of the truth defence would be a matter for determination by the trial judge.

17. As already noted, that evidence would also be relied upon in support of the qualified privilege defence as information made available by Michelle Hutchins to Ms Manwaring, but the point is that, at this point, those particulars (according to Ms Chrysanthou's instructions) represent the best particulars the defendants are able to provide on that issue. The purpose of particulars is to put a party on notice of the case he has to meet, but the obligation to provide particulars is not to be confused with an obligation to disclose the evidence that will be adduced in support of them. Similar complaints are taken in respect of the balance of the particulars from paragraphs 5 to 12.

18. The final category of complaint amounts in substance to a contention by Dr Daniels that the particulars should be struck out because they have been provided with malice or dishonesty or bad faith. Once again, that is a matter for determination at the trial. It is a contention which Dr Daniels could, if he saw fit, make by way of reply to the qualified privilege defence or as a matter relied upon in aggravation of his damages, but it is not appropriate for the Court at this point to attempt to determine whether there is substance in Dr Daniels' contention to that effect, and it is not a basis for striking the particulars or the defence out under rule 14.28.

19. A final complaint made in Dr Daniels' affidavit, which was taken to comprehend the submissions he would put before the Court, relates to the statement by the defendants at the conclusion of their letter, "the defendants will provide further and better particulars as they become available and after discovery and interrogatories". Dr Daniels understood that to be a suggestion that he should use the interlocutory processes of discovery and interrogatories "to get to the bottom of” various allegations made in the particulars. That is not as I would understand that statement in the letter. Rather, it appears to be an attempt to reserve to the defendants an entitlement to seek to amend or supplement the particulars in the event that they received further information from Dr Daniels as a result of those interlocutory processes.

20. The express reservation of a right to take that course or an assertion in correspondence that it will be taken is neither necessary nor effective, but it is one commonly seen in correspondence of this kind and it helps to serve as a reminder to the party to whom the particulars are provided of the ongoing possibility of the case evolving based on information exchanged between the parties.

21. For those reasons, I am not persuaded that paragraphs 37 to 47 of the defence are liable to be struck out and, accordingly, the application is rejected.

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Amendments

10 March 2015 - added insertion to cover sheet of Solicitor

Decision last updated: 10 March 2015