Fleming v Advertiser-News Weekend Publishing Co Pty Ltd
[2013] SASC 92
•19 June 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING CO PTY LTD & ANOR
[2013] SASC 92
Reasons of Judge Dart a Master of the Supreme Court
19 June 2013
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Strike out pleadings - further and better particulars - Defamation Act 2005 - defence of contextual truth - pleading of a reply - Rule 101(1)(b) - meaning of "must outline an answer" - meaning of "special defence".
Defamation Act 2005 s 24; Supreme Court Civil Rules 2006 r 100, 101, 102 and 104, referred to.
Griffin v Kotsifas & Anor [2011] SASC 61, considered.
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING CO PTY LTD & ANOR
[2013] SASC 92JUDGE DART:
This application
In these proceedings the plaintiff complains that he was defamed by the defendants. The action was commenced in 2009 in the District Court and moved to this Court in 2010.
The defendants have brought an application[1] by which they seek orders to either strike out the plaintiff’s Reply or, in the alternative, seek further and better particulars of the matters pleaded in the Reply.[2] It is the most recent application in what has been a lengthy interlocutory history of pleadings disputes.
[1] FDN61, filed 8 April 2013.
[2] FDN60, filed 28 February 2013.
Structure of the pleadings
In order to understand the application it is first necessary to understand how the pleadings in this matter are structured.
In the Fourth Amended Statement of Claim (“the SOC”)[3] the plaintiff alleges that he was defamed in five separate publications between 31 August 2008 and 15 August 2009. Broadly speaking, the articles alleged that the plaintiff, who was at the material time an Anglican priest, engaged in sexual misconduct.
[3] FDN51, filed 13 August 2012.
The defences pleaded in the Sixth Defence (“the Defence”)[4] are in large part statutory. In particular, the defendants rely on s 24 of the Defamation Act 2005 which provides as follows:
[4] FDN52, filed 21 August 2012.
24—Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
In relation to each of the five publications the contextual imputations are pleaded out at some length. By way of example, paragraph 10 of the Defence provides as follows:
10.In the alternative, if the first publication or the first web publication conveyed either of the imputations alleged in paragraph 5A of the Fourth Amended Statement of Claim, then the Defendants say the first publication and the first web publication in their natural and ordinary meaning additionally carried the following contextual imputations (‘the First Article Contextual Imputations’), which imputations are true in substance and in fact:
10.1 The Plaintiff engaged in sexual misconduct while an Anglican priest in that he had a homosexual relationship for years with a young male who had sought counselling from him over his sexuality.
10.2 The Plaintiff abused his position of trust as an Anglican priest and engaged in immoral behaviour by having a lengthy homosexual relationship with a young male who had sought counselling from him over his sexuality.
10.3 The Plaintiff was a sexual predator in that while an Anglican priest he engaged in sexual activity with a woman and a man who had sought counselling from him.
10.4 The Plaintiff was a hypocrite in that he held himself out as a moral, trustworthy and righteous man when the truth was that he was immoral, untrustworthy and sinful.
10.5 The Plaintiff engaged in reprehensible sexual misconduct while an Anglican priest.
10.6 The Plaintiff abused his position as an Anglican priest to prey on vulnerable young people for his sexual gratification.
10.7 The Plaintiff engaged in criminal sexual behaviour while an Anglican priest.
Sub-paragraphs 10.1 to 10.7 each have detailed particulars, which are not repeated here. The particulars for some of the sub-paragraphs run to a further thirty-six paragraphs.
In relation to the four subsequent publications similar, but not always identical, contextual imputations are pleaded.[5] The particulars pleaded for each of the contextual imputations said to arise from the various publications are more or less the same, which makes for rather a long pleading.
[5] See paragraphs 18, 24, 33 and 39 of the Sixth Defence, FDN52.
The Reply filed on 28 February 2013 denies that the contextual imputations arise and further pleads some limited admissions.
Form of the application
The defendants’ application seeks orders that:
2 that the Reply filed by the plaintiff on 28 February 2013 (Reply) be struck out;
3 in the alternative to order 2, that:
3.1 paragraph 3 of the Reply be struck out; and
3.2 the Plaintiff provide further and better particulars of paragraphs 4 to 17 inclusive of the Reply.
During the course of the argument it became apparent that there were three issues which needed to be resolved. They were:
1. Whether paragraphs 3.2 and 3.3 of the Reply should be struck out.
2. Whether the Reply complied with the requirements of Rule 101(1)(b), and
3. Whether further and better particulars of paragraphs 4 to 17 should be provided.
Should paragraphs 3.2 and 3.3 be struck out?
Paragraph 3 of the Reply is as follows:
3As to paragraphs 10 & 10A, 18 & 18A, 24 & 24A, 33 & 33A, 39 & 39A and 40 of the defence the plaintiff says that the pleas of contextual truth:
3.1do not arise;
3.2are bad at law; and
3.3should be struck out or not allowed to proceed to trial.
The defendants seek to strike out sub-paragraphs 3.2 and 3.3. The basis on which they do so is that it is not permissible to plead in that form in circumstances where there have been a number of interlocutory attempts to strike out the paragraphs dealing with contextual truth. Those attempts have failed.
The lengthy interlocutory history of this matter is relevant to this part of the defendants’ complaint about the Reply. In April 2011 the plaintiff made an application[6] to strike out the contextual imputations filed in the then Fourth Defence.[7] The contextual truth imputations in the Defence remain as they were in the Fourth Defence. His Honour Judge Lunn published reasons on 31 May 2011[8] in which he declined, other than with respect to a couple of sub‑paragraphs, to strike out pleas with respect to the contextual imputations.
[6] FDN33, filed 21 April 2011.
[7] FDN30, filed 11 February 2011.
[8] FDN35.
By Notice of Appeal dated 4 October 2011[9] the plaintiff instituted an appeal from Judge Lunn’s decision. That appeal was heard by His Honour Justice Peek, who delivered reasons on 13 Apri1 2012 dismissing the appeal so far as it complained of Judge Lunn’s refusal to strike out the pleading in relation to the contextual imputations. [10] After Justice Peek delivered his reasons the SOC was filed in August, followed shortly thereafter by the Defence.
[9] FDN36.
[10] [2012] SASC 58.
On 6 September 2012 the plaintiff instituted a further application[11] seeking to strike out the pleadings in relation to the contextual imputations. This was quickly followed on 20 September 2012 by another application[12] in which he sought simply to have the question of the contextual imputations referred to the trial Judge. There were some other pleadings issues raised by that application, but they were resolved by consent between the parties.
[11] FDN53, filed 6 September 2012.
[12] FDN55.
Judge Lunn delivered further reasons on 23 October 2012[13] relevantly dismissing FDN55. It is against this background that FDN61 comes to be considered.
[13] FDN58.
The Court’s power to strike out a pleading is contained in r 104, which provides as follows:
104—Court's power to strike out pleading
The Court may strike out a pleading in whole or part if the pleading—
(a)does not comply with these rules; and
(b)is an abuse of the process of the Court or prejudices the proper conduct of the action.
The plea in sub-paragraph 3.2 says that the pleaded defence of contextual truth is bad at law and sub-paragraph 3.3 says the plea should be struck out or not allowed to proceed to trial. In my opinion, they are not appropriate pleas. To say that a pleading is bad at law does not comply with the rules as to pleadings. Further particulars are required. Likewise, to say that a pleading should be struck out and not allowed to proceed to trial is not a permissible plea.
Pleadings disputes are to be resolved prior to trial.[14] In my view, sub‑paragraphs 3.2 and 3.3 do not comply with the rules and prejudice the proper conduct of the action. Also, given that previous applications to strike out the relevant pleas were dismissed, they amount to an abuse of process.
[14] See reasons of Judge Lunn, FDN58.
On the hearing senior counsel for the plaintiff only faintly, if at all, defended those two pleas. In my view, sub‑paragraphs 3.2 and 3.3 should be struck out.
Does the Reply comply with the Rules for the pleading of a reply?
The requirements on a party filing a reply are similar to that of a party filing a defence. The relevant rule is r 101, which is as follows:
101—Requirements for reply
(1)A reply—
(a)must indicate which (if any) allegations of fact in the defendant's defence the plaintiff admits or does not propose to challenge at the trial; and
(b)must outline the plaintiff's answer to each special defence raised by the defendant (with a short summary of any material facts on which the plaintiff's answer is based).
(2)A reply and a defence to a counter-claim may be included in the same document if they are differentiated by separate headings.
(3)If a defence contains an allegation of fact, the plaintiff is to be taken to deny the allegation unless the reply indicates that the allegation is admitted or that the plaintiff does not propose to challenge it at the trial.
It appears that r 101(1)(b) is uniquely drafted. There is no equivalent in the 1987 rules nor, for that matter, the 1947 rules. As far as my research reveals, no other Supreme Court has a rule drafted using the language of r 101(1)(b).
The rule makes clear that a party filing a reply has a mandatory obligation to “outline the plaintiff’s answer to each special defence”.
The term “special defence” is defined in r 100 and that definition is applicable to r 101. It is defined as:
100—Requirements for defence
…
(3)A special defence is a defence other than a denial of facts alleged by the plaintiff, or a denial that facts alleged by the plaintiff give rise to a cause of action.
Examples—
1An assertion that the plaintiff is estopped from maintaining the claim.
2An assertion that the plaintiff's claim is statute barred.
The plaintiff says that the statutory defence of contextual truth is not a special defence. It appears from the Rule that a special defence is anything other than a denial of facts. Whatever the exact nature of a special defence, it is clear that a statutory defence, such as the defence of contextual truth, falls within the definition of special defence. In Griffin v Kotsifas & Anor[15] it was accepted that defences arising under other provisions of the Defamation Act were special defences. The plea of contextual truth is a special defence.
[15] [2011] SASC 61, Lunn SCM, 29 September 2011.
The question then becomes what is the plaintiff’s obligation in relation to outlining an answer? A number of Supreme Courts have a rule which requires a reply to plead any matter which it is alleged makes the pleaded defence not maintainable.[16] In my view, r 101(1)(b) should be interpreted in the same way. The requirement to outline an answer is a requirement to plead a matter which, if accepted, means the defence cannot be maintained.
[16] Queensland Supreme Court’s Uniform Civil Procedure Rule (1999) Rule 150 (4); Supreme Court Rules (1971) Western Australia Order 20 Rule 9.
The pleading in paragraph 3.1 of the Reply is that the contextual truth imputations do not arise. That pleading is not adequate for the purposes of r 101(1)(b). The plaintiff needs to plead why it is that the contextual imputations do not arise. It became clear during argument that the plaintiff’s position is that the factual matters pleaded as particulars and said to give rise to the contextual imputations did not occur. It may be that the plaintiff is not able to plead much more than the fact that the events relied upon by the defendants did not occur.
It is clear there is a distinction between r 101(1)(b) and r 101(3). The normal scheme of the pleadings rules is that a party is only obliged to admit that part of the opponent’s pleading which is not to be denied or challenged. It is otherwise entitled to be silent. Where there is no pleading there is a presumed denial. Rule 101(1)(b) is an exception to the normal pleading practice. The plaintiff will need to provide further particulars as to why he says the contextual imputations do not arise.
Should further particulars be ordered?
The defendants seek further particulars of paragraphs 4 to 17 of the matters pleaded in the plaintiff’s Reply. The defendants say, in their supplementary written submissions filed after the argument, that the pleas in paragraphs 4 to 17 do not give fair notice of the plaintiff’s case. Those paragraphs contain limited admissions of the factual matters pleaded by the defendants in their Defence. The balance of the matters in the Defence are deemed to be denied.
Rule 102 provides:
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 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.
The defendants must satisfy the Court of two things. The failure of the Reply to give fair notice of the plaintiff’s case and, secondly, that that failure would create substantial prejudice if no order for particulars is made.
In my view, the defendants have not satisfied either of the two provisions. Further particulars are to be provided with respect to paragraph 3.1. They will give the defendants notice of the plaintiff’s case at trial.
As was made clear during the course of the argument, the plaintiff denies the factual matters alleged by the defendants occurred.
Paragraphs 4 to 17 of the Reply make admissions of some of the matters that the defendants would otherwise have to establish at trial. The defendants are presumably in a position to prove the matters that they have pleaded. They carry the onus with respect to those matters. In the circumstances, it would not seem that any prejudice arises as a result of the limited admissions made by the plaintiff. The defendants are left to prove those matters which are not admitted. No prejudice arises from that.
If the plaintiff does not plead material facts with respect to the particulars pleaded in relation to the contextual imputations, he will only be able to put the defendants to proof. The effect of r 103 is that the plaintiff will not be able to introduce evidence of facts at trial if those facts ought to have been pleaded.
Orders
I make the following orders:
1Sub-paragraphs 3.2 and 3.3 of the Reply are struck out.
2The plaintiff is to file an amended reply containing further particulars of sub-paragraph 3.1.
3There will be no order for the pleading of further particulars of paragraphs 4 to 17 of the Reply.
I will hear the parties as to consequential orders.
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