FLEMING v ADVERTISER-NEWS Weekend Publishing Co Pty Ltd (No 2)

[2012] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

FLEMING  v  ADVERTISER-NEWS WEEKEND PUBLISHING CO PTY LTD & ANOR (No 2)

[2012] SASC 127

Reasons of Judge Lunn a Master of the Supreme Court

24 July 2012

PROCEDURE

Application to amend Statement of Claim - pleading of imputation alleging a criminal offence in a defamation claim - offence not precisely identified - held 6R99(1)(b) requires statute on which offence is based to be pleaded - application dismissed.

FLEMING  v  ADVERTISER-NEWS WEEKEND PUBLISHING CO PTY LTD & ANOR (No 2)
[2012] SASC 127

JUDGE LUNN:

Reasons on plaintiff’s application to file a Fourth Statement of Claim

1. The Plaintiff, who was an Anglican priest, sues the Defendant for damages in defamation.  The provisions of the Defamation Act 2005 apply.

2. The Third Statement of Claim pleads nine allegedly defamatory publications by the Defendant.[1]  In respect of all nine publications, the plaintiff has pleaded the same basic imputation in relation to each publication as follows:

   In the natural and ordinary meaning the words in the … publication[s] … meant and were understood to mean:

   (1)     That the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be younger than 13; or alternatively

   (2)     There were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed criminal offences of unlawful sexual intercourse with a minor who might be younger than 13.[2]

   [1]    Paragraph 12A of the Statement of Claim refers to a further publication identified as the fifth web publication, which is not now pleaded.

   [2]    In some instances additional words have been added into the imputation, but they are not relevant to what I have to decide.

3. The Statement of Claim pleads the words complained of in each of the nine publications.  In broad terms they are that in the 1970s the plaintiff had a sexual involvement with two girls, one of whom was under age.  The one who was under age was named as “Jane”.  The nature of the sexual involvement was not stated.  There was no express reference to oral sex, masturbation or homosexual activity.

4. The plaintiff has not pleaded any other imputations alleging criminal offences of indecent assault, indecent interference or gross indecency, or of immoral sexual impropriety or conduct unbecoming to a priest.

5. On 31 May 2011 I published reasons on an application by the plaintiff to strike out part of the pleaded defence of contextual truth.[3]  In those reasons I concluded that the reference to the criminal offence of unlawful sexual intercourse in the Third Statement of Claim was inappropriate, as an offence with that name did not exist at the time of the acts in question.  My reasons were largely upheld by Peek J on an appeal.[4]

   [3]    FDN35.

   [4] 13 April 2012, [2012] SASC 58, FDN41.

6. By an application of 30 May 2012 the plaintiff seeks permission to file a Fourth Statement of Claim amending his pleadings of the defamatory imputations.  It is only necessary to refer to the first of these amendments, as the rest will follow suit.  He seeks to amend paragraph 5A(1) as follows:

   (1)That the Plaintiff as an Anglican priest had committed such criminal offences of unlawful sexual intercourse as attaches to the act of penile/vaginal sexual intercourse with a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects; …

   [“the Imputation”]

7. The defendants submitted that there have already been too many amendments to the pleadings of the imputations and that no further amendment should be allowed.  I do not accept that FDN44 should be dismissed on this ground, but it may be applicable to any further applications to amend.

8. As demonstrated in my earlier reasons, the pleading of “unlawful sexual intercourse” is wrong.  It does not properly plead the case which the plaintiff seeks to make at trial.  While it may have been better if the plaintiff had sought its present amendment before taking his appeal to Peek J, it is not a ground now to refuse to consider it, but it may well be relevant on costs.  As the Full Court said in Mintech Resources Pty Ltd v Russel-Taylor[5] pleadings are a means to an end and are to be applied and enforced to achieve that end.  A just trial would be impeded if the plaintiff was precluded from making a proper amendment to the imputations which he sought to plead, and particularly where it does not change the substance of the plaintiff’s case.

   [5] 8 June 2012, [2012] SASCFC 67 at [50].

9. The crux of the Imputation on the words published by the defendant on their ordinary and proper meaning is whether they mean the plaintiff had committed a criminal offence.  The plaintiff’s counsel conceded that the plaintiff would fail to establish the Imputation if the trial Judge did not find that it had at least such a meaning.  The other matters pleaded in the Imputation about the plaintiff being an Anglican priest, and the alleged victim of the crime being a vulnerable minor, are only matters of aggravation of the criminal offence.  Thus, the primary issue on the Imputation is whether the material published by the defendants meant that the plaintiff had thereby committed a criminal offence.  The argument centred upon whether the plaintiff had to identify in his pleading precisely what was that criminal offence.

10. The Imputation is ambiguous because the word “attaches” in it is in the present tense.  It is unclear whether the Imputation is that the plaintiff had committed a criminal offence under the criminal law as it existed at the time the offence was committed, or that it had become an offence under the criminal law at the much later time of the publications in 2008, even though it was not an offence at the time of the acts in question.  It would be a permissible imputation to plead that the acts in question were reprehensible because they had been recognised as criminal behaviour at a later time.

11. By the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (No 62), which came into effect on 15 May 2006, there was a substantial change in the penalties under s 49 of the Criminal Law Consolidation Act in respect of offences in relation to victims who were 13 years of age. Insofar as the ambiguous terms of Imputation may allow the plaintiff to rely on the amended version of s 49 at the times of publication in 2008, there may be some significance in this when it comes to comparing the effect of such an Imputation, if established, with the other imputations raised by the defendants in their pleas of contextual truth.

12. The authorities are clear that the plaintiff must plea his imputations as precisely as possible.[6]  Where there is doubt about what criminal offence is being raised by an imputation, a precise pleading identifying it is desirable.

    [6]    Gatley on Libel and Slander 11^th Edition, [28.2] and its footnote 80; Monte v Mirror Newspapers Ltd (1979) 2 NSW LR 663 at 678.

13. The application was argued on the basis that the revised Imputation lacked particularity in not identifying the criminal offence which was alleged.  However, it is not a question of particulars.  Particulars under 6RR 98(2)(d) and 102 only relate to the pleading of facts.  Whether the facts pleaded in the Imputation could amount to some criminal offence is a question of law.  Therefore, the identification of the precise criminal offence is not a defect in particularity.

14. Although it was not referred to in submissions, under 6R 99(1)(b) it is provided:

    (1)     A statement of claim—

    …

    (b)     must state the basis of each cause of action (including reference to any statutory provision on which the plaintiff relies); …

    Any kind of offence of sexual intercourse with a minor is a creation of statute.  Sub-r (1)(b) requires not merely the pleading of a statute on which a cause of action is based, but any upon which the plaintiff relies.  Here, the plaintiff must rely on some statute to show that the Imputation was of an offence against that statute.

15. At the trial it will be for the plaintiff to persuade the trial Judge that he or she should find the Imputation is well-founded on the material published by the defendant.  This will require the trial Judge to identify each of the elements of the criminal offence referred to in the Imputation and to find whether they are encompassed by the material published.[7]  The trial Judge will doubtless require the plaintiff to identify the criminal offence on which he relies.[8]  If the plaintiff will have to identify the offence relied upon for the Imputation to the trial Judge, there is no good reason why he should not now identify it in his pleading.

    [7]    Whether the facts alleged amount to a criminal offence is not a matter of the common understanding of the innocent bystander of the words used.  If it was a jury trial, the Judge would have to give directions to the jury as a matter of law about what constituted the alleged offence and the jury would have to follow those directions in finding whether the imputation was made out or not.

    [8]    It may be that the plaintiff can rely on more than one offence, but each will need to be identified.

16. I am satisfied that the Imputation is ambiguous and the defendants will be substantially prejudiced by not knowing in advance of the trial precisely what offence in law the plaintiff is relying upon.  The defendants’ plea of justification needs to be tailored to meet the elements of this criminal offence.

17. Accordingly, I dismiss FDN44.  I will hear the parties on costs and on what further directions are to be given on Friday 10 August 2012 at 9.30am.