Eustice v Channel Seven Adelaide Pty Ltd

[2018] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS

[2018] SASC 73

Judgment of The Honourable Justice Nicholson

1 June 2018

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - GENERALLY

The plaintiff in defamation proceedings brought an application for orders that the defendants provide further particulars of their pleaded justification defence and an application pursuant to rule 159 of the Supreme Court Civil Rules 2006 that the defendants provide notice of the witnesses they intend to call at trial and the evidence each intends to give.

Held:

1.  Application for further particulars refused.

2.  Application under rule 159 allowed but varied such that both plaintiff and defendants are to provide notice.

Supreme Court Civil Rules 2006 (SA) r 102, r 159; Defamation Act 2005 (SA) s 23, referred to.
Matthews & Anor v Shaw & Ors [2014] SASC 74; Rush v Nationwide News Pty Ltd [2018] FCA 357, considered.

EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2018] SASC 73

Civil

NICHOLSON J.      

Introduction

1. The plaintiff, Benjamin Eustice, has sued the defendants in defamation.  It is alleged that in late 2012 and early 2013 the defendants published on the television and on the internet videos of the second and third defendants’ interactions with the plaintiff concerning his alleged conduct as a seller of second hand motor vehicles which publications are defamatory of the plaintiff.  The publications in question focus, essentially, on the alleged conduct of the plaintiff and his father towards the third defendant with respect to the sale to her of a second hand motor vehicle.  The second defendant was at the time a television reporter allegedly employed by or otherwise relevantly associated with the first defendant television broadcaster.

2. In paragraph 29 of the eighth statement of claim, the plaintiff pleads that the published material in its natural and ordinary meaning meant and was understood to mean of and concerning the plaintiff:

   29.1That he serially rips of customers;

   29.2That he is a crook;

   29.3That he is ‘a snake’, meaning that he is a deceitful person;

   29.4That he is a fraudster;

   29.5That he is a convicted criminal; and

   29.6That he is a career criminal.

   The defendants, by their Fourth Defence (the Defence), have put in issue, inter alia, the allegations that the published material meant, was understood to mean or was capable of meaning any of the meanings alleged and, in the alternative, raise a number of defences, including that of justification.  The matter is listed for trial to commence on 27 August of this year. 

3. These reasons concern three applications by the plaintiff.  The first to be dealt with is an oral application pursuant to rule 102 of the Supreme Court Civil Rules 2006 for further particulars of aspects of the defence.  The second is a written application (FDN 83) seeking an order pursuant to rule 159 directing the defendants to file a notice in court listing the witnesses the defendants propose to call at the trial and identifying the evidence and describing the general nature of the evidence to be given by each witness.  The plaintiff also seeks an order that the defendants file a notice describing the evidentiary material the defendants propose to tender.  The third is an application for an order that the defendants be made dux litis at the trial or an order that otherwise varies the usual order of the presentation of cases at trial. 

4. The argument with respect to the question of dux litis was heard at some length in March.  I have deferred ruling on that issue because other, potentially relevant, matters have intervened.  In March the trial, then listed for April, was adjourned to the August date.  It was also foreshadowed at that time by the plaintiff that an application pursuant to rule 159 was likely to be made.  In the circumstances, until the pleadings have reached stasis and the rule 159 application has been determined and any orders pursuant thereto implemented, it would be premature to resolve the dux litis question. 

   The application for further particulars

5. Rule 102 of the Supreme Court Civil Rules 2006 is in these terms.

   102—Power to order further particulars of party's case

   (1)The Court may, on its own initiative or on application, order a party to file further particulars of its case.

   (2)The further particulars are, however, to be confined to facts and matters that are material to the party's action.

   (3)The Court will only make an order for further particulars if satisfied that—

   (a)     the pleadings do not give fair notice of the party's case; and

   (b)     the order is necessary to avoid substantial prejudice to the party in whose favour the order is to be made.

   (4)Unless the Court directs to the contrary, the further particulars are to be provided by substituting for an existing pleading a new pleading incorporating the further particulars required by the Court.

   (5)No pleading is defective for want of particularity unless the missing particulars would be ordered under this rule.

   In Matthews & Anor v Shaw & Ors,[1] Stanley J summarised the requisite approach to a request for further particulars pursuant to rule 102 in the following terms. 

   6SCR 102(3) provides a two-limb test. A party is required to provide particulars sufficient to give fair notice of its case to the other party. The Court will only order further particulars if the current pleading does not give fair notice of a party’s case and a party making the application would suffer substantial prejudice without further particulars of the facts material to the other party’s case.

   In order to give fair notice of a party’s case, the particulars must be explicit about the case which the party pleading intends to make out at trial.[2]  They must be sufficient in scope and content to meet the circumstances of the case.[3]

   In Davies v Chicago Boot Co Pty Ltd (No 3), Judge Lunn addressed the substantial prejudice limb of the test in the following terms:[4]

   ...where a party complains that it will be significantly prejudiced in obtaining or giving discovery, or in other interlocutory processes, because of a lack of particularity that can be a basis for more particularity being required from the opposing party at an interlocutory stage.

   [Substantial] prejudice... can be established either by evidence or by proper inferences which the Court is prepared to draw about prejudice from the evidence which is properly before it on the interlocutory application.

   [1] [2014] SASC 74 at [7]-[9].

   [2]    Lucas-Box v New Group Newspapers Ltd [1986] 1 All ER 177.

   [3]    Rupcic v AW Baulderstone Pty Ltd (1987) 46 SASR 99.

   [4] [2007] SASC 399 at 9 – 10.

6. By way of defence, and in the event that the ordinary and natural meanings of the alleged defamatory publications relied on by the plaintiff were to be made out, the defendants plead a number of matters by way of justification at common law and pursuant to section 23 of the Defamation Act 2005 (SA) and equivalent statutory provisions in other jurisdictions.[5]

   [5] These same matters are relied on as part of the pleaded defence of fair comment at common law and honest opinion pursuant to section 29 of the Defamation Act 2005 and equivalent statutory provisions in other jurisdictions.

7. I have had regard to the summary of the principles and approach to be adopted when considering the sufficiency of particulars provided in a pleading of justification helpfully explained at some length by Wigney J in Rush v Nationwide News Pty Ltd.[6]  It is not necessary to set out that summary here.  It provides content to the two limb test provided for by rule 102 when applied in the defamation context.

   [6] [2018] FCA 357 at [46]-[54].

8. The plea of jurisdiction is set out in paragraphs 29.2.1 to 29.2.49 of the Defence.  Amongst the allegations relied on by the defendants are the following as to which the plaintiff makes the complaint of insufficient particularity.

   29.2.3To the knowledge of the Plaintiff, Andrew Eustice was also either:

   29.2.3.1employed by Ken in his used car business; or

   29.2.3.2otherwise involved in transactions conducted by Ken; or

   29.2.3.3otherwise involved in transactions of the business referred to in paragraph 29.2.48 herein.

   …

   29.2.15The Plaintiff induced the Third Defendant to waive her right under s18B of the Second-Hand Vehicle Dealers Act 1995 (SA) in connection with the sale and purchase of the vehicle by presenting her with a form of waiver document for signature on the basis that it was a document required to be signed in association with the contract for the purchase of the vehicle and by representing in the sale document that the transaction was not subject to cooling off rights.

   …

   29.2.40The Plaintiff was aware of Andrew’s conviction and the factual background to it.

   …

   29.2.42Notwithstanding the fraudulent activities by Andrew Eustice, the Plaintiff allowed him to be involved in the business conducted under used-vehicle licence dealer number MVD231539 and/or the business referred to in paragraph 29.2.48 herein and did not disclose his convictions to customers and prospective customers of the business.

   29.2.43The Plaintiff allowed Andrew Eustice to act as a salesperson in such business notwithstanding the fact that section 13A(2) of the Second-Hand Vehicle Dealers Act 1995 (SA) prohibited a person convicted of an indictable offence of dishonesty from acting as a salesperson.

   29.2.44The Plaintiff employed or engaged (or facilitated the employment or engagement of) Andrew Eustice as a salesperson in such business notwithstanding that by virtue of section 13A(1) of the Second-Hand Vehicle Dealers Act 1995 (SA) Andrew Eustice was prohibited from being employed in the business as a salesperson, being a person convicted of an indictable offence of dishonesty.

   …

   29.2.49The Plaintiff participated in the conduct of the business trading as Mr Kenny’s Cars and/or Eustice Motor City with his father Andrew Eustice knowing that Andrew Eustice was prohibited from acting as a salesperson as alleged in paragraph 29.2.43 herein.

9. All of these paragraphs but for paragraph 29.2.15, taken together, raise allegations concerning, inter alia, the role allegedly played by the plaintiff’s father, Mr Andrew Eustice.  It is alleged that he unlawfully participated in the second hand car business conducted by the plaintiff in the name of the plaintiff’s grandfather, Mr Ken Eustice, the subject of the purportedly defamatory publications.  It is alleged that the plaintiff had knowledge or awareness of that unlawful participation.

10. Paragraph 29.2.15 is, to this extent, a standalone allegation.  The plaintiff’s complaint is that paragraph 29.2.15 contains insufficient particulars of the allegation that the plaintiff “induced” the third defendant to waive certain rights.  However, and as submitted by the defendants during argument, the manner by which the plaintiff so induced the third defendant, as relied on by the defendants, is that expressly provided for in the paragraph itself.  The two acts of inducing relied upon are: first, the presentation of the form of waiver document, as alleged, on the basis that it was required to be signed in association with the contract for the purchase of the vehicle; and, second, the representation in the sale document that the transaction was not subject to cooling off rights. 

11. Whether or not these particulars if established by the evidence at trial would serve to establish the allegation that the plaintiff induced the third defendant to waive her rights as alleged will be a matter, ultimately, for trial.  However, I am satisfied that the pleading is sufficiently particularised in the sense that it provides fair notice of the defendants’ case in this respect.  An order for further particulars with respect to paragraph 29.2.15 is not warranted. 

12. The various allegations in the other paragraphs about which the plaintiff complains, are premised on allegations pleaded elsewhere that, in the past, the plaintiff’s father, Andrew Eustice, was convicted of (and imprisoned for) indictable offences of dishonesty (the Defence at paragraphs 29.2.39 and 29.2.41) and that by virtue of such convictions he was prohibited from acting or being employed as a sales person in a second hand car business (the Defence at paragraphs 29.2.43 and 29.2.44 respectively).  The paragraphs of the Defence now under consideration allege matters to the following effect.

    (i)Notwithstanding that the plaintiff was apparently employed as a sales person in the second hand car business conducted under the names “Mr Kenny’s Cars Aust” and “Eustice Motor City” and pursuant to a motor vehicle dealer licence held in his grandfather’s name (Ken Eustice), the plaintiff was conducting his own business as a seller of second hand cars.  That business was conducted through a company, Adel Finance Corporation Pty Ltd, owned and controlled by the plaintiff and which did not, itself, have a licence as required by the relevant legislation (the Defence at paragraph 29.2.48). 

    (ii)To the plaintiff’s knowledge, Andrew Eustice was employed by his father, Ken Eustice, in the second hand car business or was otherwise involved in transactions conducted by Ken Eustice or was otherwise involved in transactions of the business conducted by the plaintiff through Adel Finance Corporation Pty Ltd (the Defence at paragraph 29.2.3). 

    (iii)The plaintiff was aware of Andrew Eustice’s convictions for fraud yet allowed him to be involved in the business conducted under the grandfather’s dealer’s licence and/or the business conducted by the plaintiff through Adel Finance Corporation Pty Ltd (the Defence at paragraphs 29.2.40 and 29.2.42). 

    (iv)The plaintiff did not disclose Andrew Eustice’s convictions to customers (the Defence at paragraph 29.2.42).

    (v)The plaintiff allowed this involvement notwithstanding the statutory prohibition of such involvement (the Defence at paragraph 29.2.43).

    (vi)The plaintiff employed or engaged or facilitated the employment or engagement of Andrew Eustice notwithstanding the statutory prohibition of such (the Defence at paragraph 29.2.44).

    (vii)The plaintiff participated in the conduct of the business trading as “Mr Kenny’s Cars” and/or “Eustice Motor City” with his father, Andrew Eustice, knowing that Andrew Eustice was prohibited from acting as a sales person (the Defence at paragraph 29.2.49).

    Whether or not any or all of these assertions, if established at trial, would support or contribute to a finding that any of the allegedly defamatory meanings relied on by the plaintiff were justified, will be a matter to be determined at the trial.

13. As far as paragraphs 29.2.3, 29.2.40 and 29.2.49 are concerned, the plaintiff’s complaint is that the defendants have provided insufficient particularity of the state of mind of the plaintiff asserted in each of those paragraphs.  Under the 1987 Rules, it was expressly provided that where a party pleaded any condition of the mind or alleged as a fact that a person had knowledge or notice of some fact, matter or thing then, ordinarily, particulars of the facts upon which that party relied in support of that allegation should be provided.[7]  In the current Rules, this is no longer expressly provided for.  Rather, further particularity will be ordered only where the two-limb test as earlier set out is satisfied. 

    [7]    Rule 46.04(f) of the Supreme Court Civil Rules 1987.

14. The distinction between facts that are material to a party’s action or defence[8] and the evidence by which such facts are to be proved is, at times, difficult to draw.  In this case, the request for further particulars with respect to the state of mind allegations in paragraphs 29.2.3, 29.2.40 and 29.2.49 risks descending into a requirement to plead the evidence on the basis of which the defendants would have the Court draw the relevant inferences as pleaded. 

    [8]    See rule 102(2) above.

15. In paragraph 29 of the Defence, the defendants have pleaded in quite some detail a series of alleged activities by Andrew Eustice said to be connected with or associated with the selling of motor vehicles, various alleged facts comprising interactions between Andrew Eustice and the plaintiff including the fact that they are father and son, and various alleged co-involvements in actions said to have been undertaken in the process of selling a second hand motor vehicle. 

16. As such, I am satisfied that the defendants have provided particulars in support of the alleged inferences that the plaintiff knew of Andrew Eustice’s involvements as pleaded in paragraph 29.2.3, that the plaintiff was aware of Andrew Eustice’s conviction and the factual background to it as alleged in paragraph 29.2.40 and that the plaintiff knew that Andrew Eustice was prohibited from acting as a sales person in accordance with the relevant statute as pleaded in paragraph 29.2.49. 

17. On the assumption that the defendants were able to make out the factual basis pleaded throughout paragraph 29 of the Defence upon which they seek to rely in order to persuade the Court to draw these inferences as to state of mind, the question of whether or not that would be sufficient to permit those inferences to be drawn is a separate question not before the Court at this stage.  However, I am satisfied on the state of the present pleading in these respects, that the plaintiff is on notice of the defendants’ case albeit that he may not be on notice of all of the evidence they intend to adduce in support of this aspect of the case.  Ultimately, the states of mind alleged will be a question of inference based on all of the evidence adduced at the trial.

18. In any event, the plaintiff has not identified the manner by which, and nor am I satisfied that he would be, substantially prejudiced by any lack of particularity in these respects.  As I have said, the plaintiff knows the case he has to answer with respect to these paragraphs of the Defence.  In each case he can directly address the allegation from his own knowledge or that of his father, Andrew Eustice.

19. As far as paragraph 29.2.42 of the Defence is concerned, the plaintiff seeks further particulars of the plaintiff allowing Andrew Eustice to be involved in the business allegedly conducted under the nominated used vehicle dealer licence and/or the business allegedly conducted by the plaintiff through Adel Finance Corporation Pty Ltd. 

20. Again, this can only be a matter of inference from matters pleaded elsewhere as to Andrew Eustice’s involvement in the business in conjunction with the plaintiff’s involvement during the same period.  The defendants have pleaded a substantial number of activities said to have been undertaken by Andrew Eustice in his capacity, or as demonstrating a capacity, of a sales person with respect to second hand motor vehicles (paragraphs 29.2.9, 29.2.14 and 29.2.17 to 29.2.29).  These alleged activities together with the pleaded conduct of the plaintiff with respect to the sale of second hand motor vehicles, together with the relationship of father and son and the pleaded interactions between the two provides sufficient particularity to put the plaintiff on notice of the defendants’ case as pleaded in paragraph 29.2.42. 

21. Again, whether or not, after all of the evidence is heard, it will be sufficient to permit the inference to be drawn that the plaintiff allowed Andrew Eustice to be involved as pleaded in paragraph 29.2.42 is ultimately a matter for trial.  Further, the plaintiff has not demonstrated that an order for further particularity in this respect is necessary to avoid substantial prejudice. 

1. With respect to paragraph 29.2.43 of the Defence, the plaintiff has sought further particulars of the allegation of Andrew Eustice acting as a sales person.  The material facts in support of this allegation are pleaded elsewhere, in particular, paragraphs 29.2.9, 29.2.14 and 29.2.17 to 29.2.29 of the Defence.  The allegation that the plaintiff allowed Andrew Eustice to act as a sales person is supported in terms of particulars in the manner as explained with respect to paragraph 29.2.42. 

2. With respect to 29.2.44, the plaintiff has sought particulars of the conduct of the business by Adel Finance Corporation Pty Ltd.  When considered in accordance with the terms of paragraph 29.2.44 the request lacks clarity.  Nevertheless, the reference in paragraph 29.2.44 is to “such business” (the same reference employed in paragraph 29.2.43) which is a reference back to paragraph 29.2.42 where the allegation is that the plaintiff allowed Andrew Eustice to be involved in a business conducted under the used vehicle dealer licence in the name of the grandfather, Ken Eustice, and/or the business of a second hand vehicle dealer conducted by the plaintiff through his company, Adel Finance Corporation Pty Ltd, as pleaded in paragraph 29.2.48.  The defendants have pleaded a number of activities said to have been engaged in by the plaintiff in the capacity of conducting or participating in a business of selling second hand motor vehicles and I am satisfied that the plaintiff is sufficiently on notice of the defendant’s case that these activities were performed by way of the plaintiff conducting his own business of selling second hand vehicles through his company, Adel Finance Corporation Pty Ltd.

3. The defendants’ pleading, in paragraph 29, including in the respects complained about by the plaintiff, is in somewhat general terms.  It might be said to be less than optimal in terms of the particularity provided.  Ultimately, this may have a bearing, by way of constraining, the evidence the defendants will be permitted to adduce at trial.  However, any such issue arising will be a matter to be determined at the trial.  In any event, I am not satisfied that the plaintiff has met either limb of the test now prescribed by rule 102 which must be satisfied before an order for further particulars can be made.  I refuse the application for further particulars.

   The application under rule 159 for the defendants to provide a list of witnesses and to identify and describe the general nature of the evidence to be given by each witness

4. However, I take a different view with respect to the plaintiff’s application under rule 159 which rule is in the following terms.

   159—Notice generally

   The Court may, before or after an action is listed for trial, direct a party to an action to file a notice in the Court—

   (a)listing the witnesses the party proposes to call at the trial and identifying the evidence and describing the general nature of the evidence to be given by each witness; and

   (b)describing the evidentiary material the party proposes to tender at the trial.

5. Significant aspects of the plaintiff’s case and the defendants’ case will be document based.  Supplementary rules 163 to 168 establish a regime for the provision by the parties of a joint tender book.  Whether or not the number or volume of documents to be tendered at trial are to be characterised as “substantial” within rule 163 thus rendering compliance with the regime obligatory, I am of the view that a joint tender book will be of assistance to the parties and the Court at the trial of this matter.  I will direct that a joint tender book be prepared in accordance with the regime provided for in the supplementary rules.  In the event that further directions might need to be sought in this respect the parties have liberty to apply.  In these circumstances an order directing the defendants to file a notice describing the evidentiary material they propose to tender at trial will not be necessary.  I decline to make such an order.

6. Notwithstanding the foregoing, it is plain that oral evidence from a number of witnesses on both sides also will be adduced.  I am not persuaded that it would be appropriate to order just one side – in this case the defendants, according to the plaintiff’s application – to provide advance notice of the oral evidence it intends to adduce.  However, I am satisfied that it would be of assistance to the parties and to the smooth running of the trial for each side to prepare and provide to the other and to the Court the information envisaged by rule 159.  Supplementary rules 169 to 172 provide for a regime for the preparation of and a format for written witness statements.  I will not require the parties to adhere to that regime.  It will be sufficient for the parties to file and serve a notice identifying the witnesses they propose to call, setting out the topics about which each witness will give evidence and containing a detailed summary of the evidence proposed to be adduced from each witness with respect to each topic.

7. I will hear the parties as to a timetable for the provision of such statements in the event that an agreement in this respect cannot be reached.

8. I decline to make any order with respect to the plaintiff’s dux litis application at this stage.  Given that the rule 159 notices are yet to be exchanged I will stand over that application generally.  The plaintiff may re-agitate the application closer to trial if so instructed.

   Orders

   1.The plaintiff’s application for further particulars is dismissed.

   2.The plaintiff’s application for an order under rule 159 is allowed.

   3.On or before a date agreed by the parties or as otherwise fixed by the Court, the parties are to file and serve a notice identifying the witnesses they propose to call, setting out the topics about which each witness will give evidence and containing a detailed summary of the evidence proposed to be adduced from each witness with respect to each topic.

   4.The parties are to provide a joint tender book in accordance with the regime provided for by supplementary rules 163 to 168.

   5.The plaintiff’s application for an order that the defendants be dux litis is further stood over to a date to be fixed.