Mallik v McGeown

[2008] NSWSC 674

CITATION:	Mallik v McGeown [2008] NSWSC 674
HEARING DATE(S):	19 June 2008
JUDGMENT DATE :	3 July 2008
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	1. Pursuant to r 14.28 of the UCPR, the reply to the third further amended defence of the third defendant is struck out. 2. I grant leave to the plaintiff to file and serve an amended reply within 14 days. 3. I direct the plaintiff to provide a further answer to interrogatories 37 and 38 within 14 days. 4. I grant leave to the third defendant to administer a further interrogatory in respect of the statement to the Magistrate identified in interrogatory 43 within 7 days. 5. I direct the plaintiff to answer any such further interrogatory within a further 7 days. 6. I order the plaintiff to pay the third defendant’s costs of this application.
CATCHWORDS:	COMMON LAW - defamation - defence of qualified privilege - whether plaintiff's reply should be struck out under r 14.28 - whether reply had tendency to cause embarrassment - form of particulars of malice - overriding purpose - request by third defendant for better answers to interrogatories
LEGISLATION CITED:	Defamation Act 2005 Uniform Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Gross v Weston & Anor (2007) 69 NSWLR 279 Northam v Favelle Favco Holdings Pty Ltd (unreported, NSWSC, Bryson J, 7 March 1995) Rex v Associated Northern Collieries (1910) 11 CLR 738 Roberts v Bass [2002] HCA 57 Webb v Bloch (1928) 41 CLR 331
PARTIES:	Robin Mallik (Plainiff) William McGeown (1st Defendant) Hunter Valley Independant Newspapers Pty Ltd (2nd Defendant) Russell John Hawkins (3rd Defendant)
FILE NUMBER(S):	SC 20254/06
COUNSEL:	Mr M Neil QC / Mr D Caspersonn (Plaintiff) Ms D Robinson (3rd Defendant)
SOLICITORS:	Harris Wheeler Lawyers (Plaintiff) Philip Watson (3rd Defendant)

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

3 JULY 2008

20254/06 Robin MALLIK v William McGEOWN & Ors

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the publication by the first and second defendants of two letters, one of which was written by the third defendant. The first defendant is the editor of two newspapers owned by the second defendant. The letter written by the third defendant was published twice, first in the “Cessnock Independent” and then in the “Kurri Kurri & Western Independent”. Those publications are the second and third matters complained of in the proceedings. The letter was in the following terms:

“Dear Bill
With regard to a certain solicitor suing you for defamation over a letter to the Editor which appeared in the last edition of the Kurri paper have you pointed out to him that if it’s the truth you printed even though its painful, it not (sic) defamation?
I have had a cause to complain to the Law Society about that Solicitor and am in the process of complaining again that he lied to a Magistrate.
If your readers following (sic) the case Council ran against me over a little black dog, I’m sure they would all agree with the sentiments of the letter that appeared in your Kurri paper.
Keep on reporting the facts
Regards
R.J. HAWKINS”

2 The defences relied upon by the third defendant include defences of qualified privilege. In reply to those defences, the plaintiff asserts that the third defendant was actuated by malice in the publication of the letter. The plea of malice previously appeared in the amended reply to the second further amended defence of the third defendant, filed 9 July 2007, in terms that were not objected to by the third defendant. Paragraph 4 of that reply was struck out by Nicholas J on 10 December 2007 for reasons unrelated to the present application. The plea of malice, however, was not affected by his Honour’s orders.

3 The third defendant subsequently served an amended defence (the amended defence was not in fact filed until 30 May 2008). Accordingly, it became necessary for the plaintiff to prepare a reply to that amended pleading. Provision was made for that to occur in orders made by consent following a contested hearing as to whether the proceedings should be heard with a jury. Order 14 made by me on that occasion was “[t]hat the plaintiff have leave to file and serve a reply to the third further amended defence of the third defendant which deletes paragraph 4 and incorporates particulars by 7 April 2008.”

4 On 11 April 2008 the plaintiff filed a reply pursuant to that order (“the reply”). It is considerably longer than the previous reply. The present proceeding is an application by the third defendant to have the reply struck out. The third defendant also seeks directions requiring the plaintiff to give better answers to four interrogatories that were administered on 17 March and answered on 7 April 2008.

The reply

5 The third defendant seeks to have the reply struck out pursuant to r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (UCPR) on the grounds that it has the tendency to cause prejudice, embarrassment and delay in the proceedings. The reply is said to have those tendencies because it fails to comply with the requirements of r 14.7 of the UCPR that a pleading contain only a summary of the material facts upon which a party relies and not the evidence by which those facts are to be proved. Secondly, it is said that the reply fails to further the overriding purpose of the Civil Procedure Act of facilitating the determination of the real issues in dispute in the proceedings. The third matter relied on was the particular prejudice that would occur if the pleading were provided to a jury.

6 Ms Robinson, who appeared for the third defendant, developed those arguments by identifying five categories of vice to be found in the reply. They were, first, that it is confusing; secondly, that it is repetitious particularly in the repetition of pejorative adjectives in relation to the third defendant; thirdly, that it contains summaries and conclusions about evidence; fourthly, that it contains matters of law and fifthly, that it contains false issues. Ms Robinson pointed to examples in the reply of each of those vices. There was considerable force in those complaints.

7 Mr Neil of Queen’s Counsel, who appeared with Mr Caspersonn for the plaintiff, noted that the reply replaced the amended reply to the second further amended defence of the third defendant filed on 9 July 2007, to which he referred as “the old reply”. He tendered the exchange of correspondence by which the third defendant requested, and the plaintiff provided, further and better particulars of the old reply. He relied on the leave I granted to the plaintiff by consent on 3 March 2008 to file a reply which “incorporates particulars”. Mr Neil stated that the particulars in the present reply are not a verbatim “cut and paste” from the letters providing the particulars sought. He said that some wording was changed to fit into the substance of the reply. I note, however, that the reply reproduces the vast bulk of that correspondence and that the changes in wording are minimal.

8 On that question, Ms Robinson submitted that the fact that particulars were provided in a certain form in correspondence is no warrant for their being provided in exactly the same form in the pleading. I accept that submission. The terms of the leave granted to file a reply “incorporating particulars” did not authorise such an approach.

9 Mr Neil submitted that the reply complies with the principles as to the provision of particulars which require a party to provide what is necessary to guard the other party against surprise. Mr Neil contended that the gist of the third defendant’s complaint was that the reply provided too much information. He submitted that the plaintiff was entitled to take a cautious approach so as to identify anything that might take the third defendant by surprise, rather than be met at trial with a complaint of straying beyond the case the parties understood they had to meet. He submitted that the contents of the reply provided the “constitutive facts” of the allegations of malice, relying on a passage from the judgment of Isaacs J in Rex v Associated Northern Collieries cited in an earlier decision of Nicholas J given 15 May 2007 in these proceedings.

10 Mr Neil also referred to the judgment of Hunt AJA (with whom Handley and McColl JJA agreed) in Gross v Weston & Anor (2007) 69 NSWLR 279 at [30] where his Honour stated:

“Provided that there is disclosed in the particulars as a whole a reasonably arguable basis for a finding that the publication of the matter complained of was actuated by an improper motive, the task of a judge dealing with a defendant’s complaint about the particulars of that issue before the trial is limited to determining (1) whether any of the particulars has no relevance to the issue, and if so whether to strike it out, and (2) whether the particulars are sufficient as a whole to forewarn the defendant of the nature of the case he or she has to meet on that issue and, if not, whether to order further particulars or to strike out the allegation of improper motive.”

11 Mr Neil submitted that the reply complies with those requirements. That particular passage in the judgment was concerned with the erroneous approach of the parties of examining each of the particulars of improper motive given by the plaintiff to see whether that particular by itself established knowledge of falsity. The gravamen of the third defendant’s present complaint, however, was not so much of irrelevance of any individual particular or of the insufficiency of the particulars as a whole, but of the tendency of the pleading, including the particulars, to cause embarrassment by reason of its prolixity and obscurity and its articulation of submissions, conclusions, pejorative interpolations and propositions of law in place of an identification of the facts that will be relied on to sustain them. The question raised for my determination is whether the reply has the tendency to cause embarrassment for the reasons identified and, if so, whether the Court should exercise its power to strike it out. The statements made by Hunt AJA in Gross v Weston at [30] are relevant but not determinative of that question.

12 In determining the application, as submitted by Ms Robinson, the Court must seek to give effect to the overriding purpose of the Civil Procedure Act 2005 and the UCPR to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The overriding purpose will not be attained by insistence on perfection in pleading; nor will it be attained if a pleading that is apt to confuse is permitted to stand in the interests of saving time and costs. The duty to seek to give effect to the overriding purpose calls for a common sense approach. Not every pleading that trespasses into the territory of summarising evidence contrary to r 14.7 will cause real embarrassment. A pleading should not be struck out under r 14.28(1)(b) unless the tendency to cause prejudice, embarrassment or delay in the proceedings, fairly considered, poses a true threat to the just, quick and cheap resolution of the real issues in the proceedings. It is not enough if a pleading is merely open to improvement.

13 In Northam v Favelle Favco Holdings Pty Ltd (unreported, NSWSC, 7 March 1995) at 5, Bryson J noted that a pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action, if the material facts are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to, or if imprecise words are used. His Honour expressed the view that “procedural justice can be upset just as much by opportunistic advocacy exploiting a choice among several possibilities as by an ambush from complete concealment.”

14 The reply in the present case consists of a single paragraph expressed to be in answer to paragraphs 9, 9A, 14 and 15 of the third defendant’s defence. Those paragraphs of the defence plead, respectively, a defence of honest opinion under s 31 of the Defamation Act 2005; a defence of qualified privilege at common law and under s 30 of the Defamation Act 2005; a defence that, if I have not misunderstood it, appears to be intended to allege that the words published by the defendant are fair comment on a matter of public interest (a defence at common law) but which appears to be incompletely pleaded (paragraph 14) and a defence of qualified privilege at common law based on the category of privilege referred to as reply to an attack.

15 In answer to all of those defences, the plaintiff pleads his reply as follows:

“In answer to paragraphs 9, 9A, 14 and 15 of the Third Further Amended Defence of the Third Defendant, the Plaintiff says that the Third Defendant was actuated by malice in the publication of the second and third matters complained of; the requirements of any defence of qualified privilege have not been established and that any such opinion of the Third Defendant (denied by the Plaintiff that either the second or third matters complained of constitute expressions of opinion or comment or any part thereof) was not honestly held by the Third Defendant at the time the defamatory matter was published.”

16 Appended to that paragraph are the following six allegations described as “Particulars”:

A. The Third Defendant had an improper motive being an intent to injure the Plaintiff which actuated the Third Defendant in the publication of each of the second and third matters complained or (sic); and/or
B. The Third Defendant knew or believed that the second and third matters complained of were false; and/or
C. The Third Defendant was reckless, amounting to wilful blindness, in publishing the second and third matters complained of; and/or
D. The Third Defendant was reckless in publishing the second and third matters complained of; and/or
E. The Third Defendant published the second and third matters complained of having no honest belief in the truth thereof; and/or
F. At all material times the Third defendant was activated (sic) by spite, ill-will and hatred towards the Plaintiff.”

17 The reply then states, “this is evidenced by the following matters” and sets out paragraphs numbered (i) to (xxi) which continue over six pages of closely typed contentions consisting of a combination of factual allegations, assertions of various states of mind on the part of the third defendant, conclusions as to the characterisation of unidentified conduct of the third defendant, submissions as to the evidence and, in one instance, reference to legal authority.

18 The reply does not identify, as to any of those paragraphs, which of particulars A to F it is contended to sustain. Mr Neil submitted, however, that it is clear from the content of each paragraph which of the particulars it relates to.

19 In Gross v Weston, Hunt AJA expressed the view that a preferable reply to a defence of qualified privilege (both at common law and as extended by statute) would be, “the publication of the matter complained of was actuated by an improper motive”. His Honour relied on the passage in the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [75] which begins with the statement that an occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement.

20 Hunt AJA noted that the joint judgment distinguished improper motive from matters which are themselves evidence of malice: see [76] of the joint judgment. In that paragraph, their Honours stated that improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication.

21 Although the joint judgment is strictly obiter, it was accepted by the Court of Appeal in Gross v Weston as authority for a number of propositions, set out at [39]-[48] in the judgment of Hunt AJA, in relation to what must be established by a plaintiff in order to defeat a defence of qualified privilege.

22 The plaintiff’s particulars of malice are not entirely consistent with those principles. The main difficulty is that impropriety of purpose is not pleaded as the core contention, but only as one of the six particulars (A to F). As I understand the principles as set out in Roberts v Bass and Gross v Weston, the requirement is to identify each of the states of mind said to indicate that the publication was actuated by an improper purpose.

23 I also note that, by his use of the increasingly popular conjunction “and/or”, the plaintiff appears to rely on each of the particulars as a matter which is capable of sustaining the plea on its own. It is doubtful whether either recklessness short of a wilful blindness (particular D) or lack of belief in truth (particular E) would be enough to destroy the defence of qualified privilege on its own: Gross v Weston at [42]-[43] and [44]-[46]. However, as noted in that case at [30], that is a matter for consideration at the trial and is not a basis for striking out those particulars.

24 The approach taken in drawing the reply in the present case seems to have been to include the complete catalogue of states of mind that can, as a matter of law, establish or contribute to the establishment of improper motive and then to list a complete catalogue of the facts, conclusions, submissions and propositions to which Counsel may wish to have resort at the trial. The result is that the pleading fails to distil the factual basis on which the plaintiff relies to establish each state of mind alleged: cf Gross v Weston at paragraph [32].

25 For example, the first paragraph in support of the particulars states:

“(i) From about 2000 to the dates of publication of the second and third matters complained of and continuing to the present the Third Defendant bore animosity and hatred towards the Plaintiff and Cessnock City Council. The Third Defendant denigrated, defamed, harassed, humiliated and injured the Plaintiff in an attempt to damage the Plaintiff’s reputation, pressure the Plaintiff, pressure the Council in an attempt to have the Plaintiff removed as the solicitor for Cessnock City Council and to have the Council operate in accordance with the interests of the Third Defendant.”

26 There is then a lengthy discussion of a letter dated 24 January 2002 by which the third defendant complained about the plaintiff to the Law Society, followed by brief references to two other letters sent by the third defendant, the first to the General Manager of Cessnock City Council and the second to the editor of the Cessnock Independent. Those matters appear to boil down to an assertion that it may be inferred from the three letters referred to that the defendant bore animosity and hatred towards the plaintiff, which could relevantly sustain particular F. However, it is also alleged that the third defendant bore such feelings towards Cessnock City Council. The relevance of that contention to the core issue whether the publication of the letters complained of was actuated by an improper motive is obscure. None of the particulars A to F identifies any improper motive directed at the Council.

27 The next sentence alleges five different kinds of conduct by the third defendant towards the plaintiff and further alleges that the conduct was undertaken in the course of attempting to achieve four different outcomes, one of which entails a second layer of attempt. It is not clear whether the factual basis for the allegations of denigration, defamation, harassment, humiliation and injury of the plaintiff is intended to be confined to the fact that the third defendant wrote the three letters or whether it includes some other conduct. The allegations are couched in expressions that are apt to cause doubt and confusion as to the case sought to be made. That confusion has the potential to cause substantial debate as to the admissibility of evidence at the trial, which is to be heard with a jury.

28 An example in a different category is (vii) of the particulars, which states:

“The Third Defendant knew the second and third matters complained of were defamatory of the Plaintiff, inter alia, as shown by his writing on the bottom of the letter that constitutes the said matters complained of the word “ co-defendant ”.

29 That allegation can be unravelled as amounting to the identification of something the third defendant said as a matter from which a state of mind can be inferred. However, the alleged state of mind is confusing. The contention is that the defendant knew the second and third matters were “defamatory”, but the issue whether they were defamatory is a conclusion that turns on a number of matters, including the very state of mind referred to. Further, it is doubtful whether that state of mind can be inferred from the plaintiff’s description of himself as “co-defendant” alone. The use of the phrase “inter alia” suggests that other facts will be relied on to support the contention but they are not identified.

30 A separate problem arises in respect of paragraph (xv), which is “the manner and prominence of the second and third matters complained of.” It is alleged that the third defendant is responsible for the manner and prominence of publication of the letters by reason of the application of the principles set out in the decision in Webb v Bloch (1928) 41 CLR 331. A passage of that decision is set out in the particulars.

31 There are two problems with an allegation in that form. The first is obvious: pleadings should not include submissions of law and references to cases. More importantly, the reliance on the principles in Webb v Bloch is at best confusing and, in my view, misconceived. If the plaintiff had subjected himself to the discipline of identifying which of particulars A to F this matter related to, the confusion would have been apparent. The proposition appears to be that, where a person submits words to a newspaper for republication, the manner in which the newspaper chooses to present those words can be relied upon to indicate his state of mind when he submitted them. In my view, that proposition is untenable.

32 I have referred here to only some of the problems, by way of example. I have come to the conclusion that the pleading is embarrassing because it does not show with sufficient clarity what are alleged to be the facts material to the particulars of improper motive relied upon in terms which truly enable those allegations to be understood. It does not identify with clarity the “words and acts” of the third defendant from which the Court will be asked to infer the states of mind identified in particulars A to F: cf Gross v Weston at [33]. Rather, the material facts are couched in terms which create doubt as to how the many matters referred to are to be pieced together, and how they relate to the particulars.

33 I would expect the amended reply to be considerably shorter and to distil, from the many matters referred to in the present document, what it is contended that the third defendant said and did from which it may be inferred that he had each of the states of mind relied on to demonstrate that the publication of the second and third matters complained of was actuated by an improper motive.

Interrogatories

34 The third defendant sought better answers to two pairs of interrogatories. The first are questions 37 and 38 which were answered in the following terms:

“37. Was the statement made by you to the Magistrate, that you had asked the clerk if there was a statutory declaration from Russell Hawkins, false in fact?
37A. No, in the following context:
HH: Did you ask whether he would speak to you?
RM: Well I asked the clerk of the thing that if there was a statutory declaration from him we might consider, but there was nothing forthcoming …. its got to be remembered on this ….
HH: Oh no no no ….
the statement the Plaintiff made to the Magistrate was not false.
38. If the answer to the preceding interrogatory is in the affirmative, was that statement false to your knowledge?


38A. Not applicable.”

35 As I indicated during the course of argument, in my view there is a level of evasiveness about the answer to question 37. The question assumes an interpretation of the words used by the plaintiff when he addressed the Magistrate, namely, that he said he had asked the clerk if there was a statutory declaration from Russell Hawkins. The plaintiff’s answer to question 37 indicates that he disputes that interpretation but does not say so in terms. The suggestion, reading all of the relevant answers together, is that the plaintiff intended to say to the Magistrate that he told the clerk something, rather than to say that he asked the clerk something. However, it appears to be accepted that the words used to the Magistrate included the phrase “well I asked the clerk …”.

36 In my view, the plaintiff should assist the Court and the defendants to understand the real issues in the proceedings by clarifying whether or not he accepts the premise of the question, that he made a statement to the Magistrate that he had asked the clerk if there was a statutory declaration from Russell Hawkins. With that clarification his answers will disclose, first, what he in fact said to the Magistrate, secondly, whether what he said was false in fact, and thirdly, whether what he said was false to his knowledge. If the true position is that he meant to say something different, that will presumably be revealed by the answer to question 38.

37 The second complaint relates to questions 43 and 44 which were answered in the following terms:

“43. Was the statement made by you to the Magistrate referred to in interrogatory 39, being “I think I issued a subpoena in that time but it wasn’t made returnable in that time”, false in fact, in that the subpoena was not issued within the limitation period?
43A. No, in the context that when the Plaintiff said the words to the magistrate (sic) the Plaintiff thought the subpoena had been issued within the limitation period but not made returnable in that time.
44. Was the statement made by you to the Magistrate referred to in interrogatory 39, being “I think I issued a subpoena in that time but it wasn’t made returnable in that time”, false to your knowledge, in that the subpoena was not issued within the limitation period?
44A. No.”

38 In my view, the complaint as to the answers provided is unfounded. The questions asked whether a statement, being “I think [I did something]” was false. It is clear from the answers that the plaintiff is contending that he did in fact think what he told the Magistrate he thought.

39 If the gravamen of the third defendant’s complaint is that there were no reasonable grounds for the plaintiff to think so, that could be the subject of a different question. The questions posed have been properly answered.

Orders

1. Pursuant to r 14.28 of the UCPR , the reply to the third further amended defence of the third defendant is struck out.

2. I grant leave to the plaintiff to file and serve an amended reply within 14 days.

3. I direct the plaintiff to provide a further answer to interrogatories 37 and 38 within 14 days.

4. I grant leave to the third defendant to administer a further interrogatory in respect of the statement to the Magistrate identified in interrogatory 43 within 7 days.

5. I direct the plaintiff to answer any such further interrogatory within a further 7 days.

6. I order the plaintiff to pay the third defendant’s costs of this application.

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