Jovanovic v Woods
[2005] TASSC 106
•9 November 2005
[2005] TASSC 106
CITATION: Jovanovic v Woods [2005] TASSC 106
PARTIES: JOVANOVIC, Jon
v
WOODS, John William
AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION
CARRIGG, David
DAVIES BROTHER LIMITED ACN 009 475 754
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 94/1999
DELIVERED ON: 9 November 2005
DELIVERED AT: Hobart
HEARING DATE: 13 October 2005
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under the Rules of Court - Proceedings in lieu of demurrer - Application to strike out statement of claim on grounds that it discloses no reasonable cause of action – When vicarious liability arises for defamation by servant or agent.
Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (1931) 46 CLR 41, applied.
Lloyd v Grace, Smith & Co [1912] AC 716, followed.
Aust Dig Procedure [274]
REPRESENTATION:
Counsel:
Plaintiff/Respondent: In Person
Second Defendant/Applicant: A J Abbott
Solicitors:
Plaintiff/Respondent: In Person
Second Defendant/Applicant: Australian Government Solicitor
Judgment Number: [2005] TASSC 106
Number of paragraphs: 14
Serial No 106/2005
File No 94/1999
JON JOVANOVIC v JOHN WILLIAM WOODS,
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,
DAVID CARRIGG, DAVIES BROTHER PTY LIMITED AC N 009 475 754
REASONS FOR JUDGMENT UNDERWOOD CJ
9 November 2005
On 5 February 1999, the respondent and one Ian Maxwell Tapping, commenced proceedings in Action No 94/1999. The claim is for damages for defamation. There were five defendants. The second defendant, Scott Purdon, is no longer a party to the action. The first defendant is John William Woods ("Woods") and the now second defendant is the Australian Securities and Investments Commission ("the Commission"). However, it is more convenient to adhere to the appellation of the parties in the original statement of claim, and so the Commission will be referred to as the third defendant. The fourth and fifth defendants are David Carrigg, whom I understand is a newspaper reporter, and Davies Brothers Pty Limited, a newspaper publisher.
By interlocutory application dated 11 February 2004, the Commission seeks an order that the respondent's statement of claim against it be struck out and that judgment be entered in its favour against the first plaintiff (the respondent). The statement of claim is relatively short:
· Paragraphs 1 and 2 plead that the fourth and fifth defendants are a reporter and a newspaper publisher respectively.
· Paragraph 3 reads:
"… the first defendant was an accountant being the servant or agent of the Third Defendant and he was instructed by the Third Defendant to investigate and submit a report concerning the financial affairs and status of D W & I M Tapping Pty Ltd (Tapping)."
· Paragraph 4 asserts that the plaintiffs were directors of D W & I M Tapping Pty Ltd.
· Paragraph 5 alleges that between 1 December 1998 and 18 January 1999, Woods published defamation to the fourth and fifth defendants. An annexure sets out the alleged defamatory material.
· Paragraph 6 pleads, with particulars, the imputations that are said to arise from that defamatory material.
· Paragraph 7 pleads that the publication of the material in the Mercury Newspaper was a likely consequence of the publication pleaded in par5, and that there was such a publication in the newspaper on 18 January 1999.
· Paragraph 8 adds nothing new to the statement of claim.
· Paragraph 9 alleges the imputations that arise out of the republication are the same as those set out in par6.
· Paragraph 10 pleads that in the alternative, the newspaper publication was a defamation by the fourth and fifth defendants (regardless of whether it was a republication).
· Paragraph 11 repleads the same imputations.
· Paragraphs 12 and 13 allege injury and damage and claim damages.
Mr Abbott, who appeared for the Commission on the interlocutory application, correctly submitted that the only facts pleaded against the Commission were that Woods was a servant or agent of the Commission and instructed by it to investigate and submit a report concerning the financial affairs of D W & I M Tapping Pty Ltd. He contended that accordingly there were insufficient facts pleaded to establish a cause of action against the Commission.
The respondent, a self-represented litigant, addressed me at some length with respect to the law of vicarious liability, although I venture to think that for present purposes, it is well settled. A master or principal will be vicariously liable for defamatory words published by his or her servant or agent if such publication is made with the consent of the master or principal. Liability will also attach if the publication was made within the scope of the employment or agency, even if the publication was solely for the benefit of the servant or agent. See Lloyd v Grace, Smith & Co [1912] AC 716. A servant or agent will be deemed to have acted within the scope of his or her employment or agency if the publication, although itself unauthorised, was so directly incidental to some act that the servant or agent was authorised to do, that it could be described as a mode, albeit improper, of performing that which was authorised.
Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited (1931) 46 CLR 41, concerned a defamatory publication by a life assurance agent. It was a written term of his engagement that, in effect, he would not say anything that may have the effect of adversely reflecting upon any institution or person. Whilst attempting to gain business, the agent said that his company was insolvent and proceedings were commenced against him for damages for defamation. In their joint judgment, Gavan Duffy CJ and Starke J said, at 46 – 47:
"In our opinion the judgment of the Judicial Committee in Citizens' Life Assurance Co v Brown [1904] AC 423 really concludes the present case. But if it does not, still we apprehend that one is liable for another's tortious act 'if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority.' It is not necessary that the particular act should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of (Barwick v English Joint Stock Bank [1867] LR 2 Ex 259; Lloyd v Grace Smith & Co [1912] AC, at p 733). And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. (Cf Limpus v London General Omnibus Co [1862] 1 H & C 526; 158 ER 993.) The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorized to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction."
The statement of claim, par3, alleges that the scope of the agency or employment was to investigate the financial affairs and status of a named company and to submit a report. It is not pleaded that the publication by Woods as alleged in par5 of the statement of claim was within the course of his alleged employment, nor within the scope of his alleged agency. No fact is pleaded which, if proved, could establish that the alleged publication pleaded by par5, was made with the consent of the Commission or was an act within a class of acts that Woods was engaged to do as pleaded by the statement of claim, par3.
During the course of argument, I expressly put Mr Abbott's submission to the respondent and invited him to reply to it. He said, "Paragraph 3 is a sufficient plea to make [the Commission] vicariously responsible for the defamatory publication by [Woods]." For the reasons just set out, I do not accept that contention.
Before parting with this matter, it is necessary to look at some particulars dated 15 March 2004 and delivered by the respondent to the solicitor for the Commission. It is, of course, beyond doubt that particulars cannot enlarge a plea in the statement of claim (Bruce v Odhams Press Limited [1936] 1 KB 697, a defamation case). Mr Abbott quite properly contended that as the respondent was self-represented, it would be appropriate for me to regard, in the alternative, the particulars as further pleas in the statement of claim.
Relevant to the Commission, the particulars are headed:
"Particulars of the 3rd named Defendants Defamation, pursuant to the 3rd named Defendant's acknowledgment on 24th June 1999 that the 1st name Defendant:" [sic]
The following particulars are convoluted, confusing and difficult to understand. They plead argument, conclusions, and the occasional fact. As best I can make out, particular 1 pleads that the Commission defamed the respondent when it "allowed and or failed to prevent [Woods] its agent and or employee and or person for whose actions the [Commission] was vicariously responsible …". The particular does not proceed to state what it was that the Commission allowed Woods to do, nor what it failed to prevent him from doing. The particular concludes with a reference to Woods being a staff member of the Commission by virtue of the provisions of the Australian Securities and Investments Commission Act 1989 (Cth), s5. That reference does not assist the respondent because by virtue of the opening words of that section, all definitions in it are only for the purposes of the Act. The statutory definition of "staff member" for the purposes of the Act is irrelevant to the common law of master and servant and principal and agent.
Particular 2 merely asserts that the Commission was vicariously responsible for Woods and alleges that it defamed the respondent on 16 October 1998 when Woods "negligently prepared and published a [sic] untrue report". This particular refers to a publication on 16 October 1998 which is not one of the publications referred to in the statement of claim. In any event, the particular sets out no facts concerning a publication on 16 October 1998, which if established by evidence, would entitle the respondent to the relief sought.
Particular 3 again makes the bare assertion that the Commission was vicariously responsible for Woods, and again refers to a report published on 16 October 1998. As is the case with respect to the previous particular, no facts concerning a publication on 16 October 1998 are pleaded, which if established by evidence, would entitle the respondent to the relief sought.
The fourth, and last, particular repeats the assertion of vicarious responsibility made in the preceding particulars, and alleges that the Commission thereby "continued to defame the [respondent] on 16th October 1998, 30th October 1998, 27th November 1998 and 18th January 1999". The last date is within the statement of claim, par5, but the others are not. Again, no facts concerning any of those alleged publications are pleaded, which if established by evidence, would entitle the respondent to the relief sought.
Accordingly, the Commission's application must succeed. Assuming that every fact that is pleaded (as opposed to argument and conclusion) is established by evidence, the respondent would not be entitled to any relief. See Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937. The respondent did not suggest that there were other facts which, if pleaded, would cure the defect in the statement of claim. He is an experienced self-represented litigant and is familiar with the power to amend pleadings and how to make an application for an order for leave to amend. No such application was mooted by him.
It is ordered that in Action No 94/1999, the plaintiff Jon Jovanovic's statement of claim against the third defendant, the Australian Securities and Investments Commission, be struck out and that judgment be entered for the third defendant against the plaintiff Jon Jovanovic with costs to be taxed.
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