Martin v Trustrum
[2001] TASSC 109
•7 September 2001
[2001] TASSC 109
CITATION: Martin v Trustrum [2001] TASSC 109
PARTIES: MARTIN, Janine Marcia
v
TRUSTRUM, Thomas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 836/2001
DELIVERED ON: 7 September 2001
DELIVERED AT: Hobart
HEARING DATES: 30 August 2001
JUDGMENT OF: Master Holt
CATCHWORDS:
Procedure - Tasmania - Practice under the Rules of Court - Pleadings - Striking out.
Supreme Court Rules 2000 (Tas).
Aust Dig Procedure [272]
Defamation - Actions for defamation - Pleading defences.
Aust Dig Defamation [119]
REPRESENTATION:
Counsel:
Plaintiff: D J Gunson
Defendant: In Person
Solicitors:
Plaintiff: Gunson Williams
Defendant: In Person
Judgment Number: [2001] TASSC 109
Number of Paragraphs: 12
Serial No 109/2001
File No 836/2001
JANINE MARCIA MARTIN v THOMAS TRUSTRUM
REASONS FOR JUDGMENT MASTER HOLT
7 September 2001
This is a defamation action. The plaintiff, Mrs Martin, has delivered a statement of claim and the defendant, Mr Trustrum, who is unrepresented, has delivered a defence and counterclaim. Mrs Martin complains that some parts of the defence offend various principles and rules of pleading and that the counterclaim fails to disclose a cause of action against her, and wants the impugned parts struck out.
It is convenient to review the pleadings generally before moving to the specific complaints. Much of what Mrs Martin has alleged in her statement of claim has not been the subject of a specific or implicit response in the defence. Pursuant to Supreme Court Rules 2000, r250, allegations not traversed in the defence are taken to have been admitted. Applying the rule, the following allegations quoted below from the statement of claim are admitted:
"1 The Plaintiff is and was at all material times the Executive Director of The Law Society of Tasmania.
2 The Plaintiff is and was at all material times a legal practitioner.
3 In or about the month [sic] of May and June 2001 the Defendant published an article of and concerning the Plaintiff under the heading
'A Vexatious Complaint - Another True Horror Story from the Secret Files of the Solicitor From Hell, J M Martin (Pictured) Law Society of Tasmania' (hereinafter referred to as the first article).
4 Annexed hereto and marked with the letter 'A' is a true copy of the first article comprising 9 pages.
5 …
6 The Defendant has published the article to
(a)Judy Tierney;
(b)ABC Television;
(c)Annette Flong
(d)BBC London;
(e)Simon Bevilacqua;
(f)Anne Barbelink;
(g)The Mercury Newspaper;
(h)Mike Munro;
(i)A Current Affair (a television current affairs programme);
(j)Heather Long;
(k)Barry Prismall;
(I)The Examiner Newspaper;
(m)Angela McLaren;
(n)Anthony Haneveer;
(o)The Advocate Newspaper;
(p)Ric Paterson;
(q)Tim Cox;
(r)Annie Warburton;
(s)Jules Retrot;
(t)Chris Wisbey;
(u)ABC Radio
(v)138 persons who are described by the Defendant as members of the Freedom (FOI) Fighters United;
(w)legal practitioners throughout the State of Tasmania;
(x)and divers other persons in the State of Tasmania.
7 …
8 On or about the 1st day of July 2001 the Defendant published of and concerning the Plaintiff a further article entitled
Law Society of Tasmania Exposed! Martin, two clerks and a tea jug (hereinafter referred to as the second article).
9 A copy of the second article is annexed hereto and marked with the letter 'B'.
10 In its natural and ordinary meaning the second article meant and was understood to mean
…
(k)that the Plaintiff is dishonest.
11 The Defendant has published the second article to legal practitioners throughout the State of Tasmania and to divers other persons.
…
13 On or about the 20th day of June 2001 the Defendant published of and concerning the Plaintiff an article entitled
Freedom Fighters (FOI) United Communiqué No 3 (hereinafter referred to as the third article).
14 A copy of the third article is annexed hereto and marked with the letter 'C'.
15 In its natural and ordinary meaning the third article meant and was understood to mean
(a)that the Plaintiff had published pornographic letters;
(b)that the Plaintiff in her capacity as Executive Director of The Law Society of Tasmania had for a period of three years ordered the 'summary executions of dozens of Law Society complainants';
…
16 The third article has been published by the Defendant to legal practitioners throughout the State of Tasmania and to divers other persons.
…
22 By the publication of the second article by the Defendant, the Plaintiff has been greatly injured and her credit, reputation, office and profession has been brought into ridicule and contempt and has suffered loss and damage.
23 By the publication of the third article by the Defendant, the Plaintiff has been greatly injured and her credit, reputation, office and profession has been brought into ridicule and contempt and has suffered loss and damage."
Paragraphs 5, 10 and 15 of the statement of claim respectively set out the imputations alleged to be contained in the three articles. Mr Trustrum, in his defence, does not dispute the existence of a large number of these imputations, but denies that they are defamatory. For example, the statement of claim, in par5(a) alleges an imputation "that the Plaintiff had failed to discharge her duty as the Executive Director of The Law Society of Tasmania in respect of complaints made by the Defendant to The Law Society of Tasmania in respect of two legal practitioners". Paragraph 1 of the defence is as follows:
"1 - As to para 5a in the Plaintiff's statement of claim. It is admitted that the words or similar words were written on or about 7 June in reply to the Plaintiff's letter received on 31 May, following publication of the President of the Law Society's false and misleading letter in The Mercury on 24 May but it is denied the words were defamatory or intended to be defamatory."
The existence of other alleged imputations is, however, denied. For example, in par5(e) of the statement of claim, Mrs Martin asserts the existence of an imputation "that the Plaintiff had single-handedly destroyed The Law Society of Tasmania's credibility". Mr Trustrum's response in par5 of his defence is the same as his response to imputation 5(a), but with a denial that the imputation is contained in the publication. His par5 is as follows:
"5 ‑ As to para 5e in the Plaintiffs statement of claim. It is admitted that the words or similar words were written on or about 7 June in reply the Plaintiff's letter received on 31 May, following publication of the President of the Law Society's false and misleading letter in The Mercury on 24 May but it is denied the words were defamatory or intended to be defamatory. The Defendant did not mean and was not understood to mean what is alleged in 5e of the statement of claim. The said words are incapable of any of the alleged meanings or of any other libellous or actionable meanings. The said words without the said alleged meanings, are true, in substance and in fact."
This same form of pleading is employed by Mr Trustrum throughout his defence to distinguish between those imputations which he admits exist but says are not defamatory imputations and those imputations which he says do not exist. Carrying the matter through, the following can be seen.
In respect of the first article, the imputations set out below are admitted to be contained in the publication, but are denied to be defamatory:
"that the Plaintiff had failed to discharge her duty as the Executive Director of The Law Society of Tasmania in respect of complaints made by the Defendants to The Law Society of Tasmania in respect of two legal practitioners;
that the Plaintiff ignored the Defendant's correspondence to The Law Society of Tasmania in respect of two legal practitioners;
that the Plaintiff did nothing in respect to the Defendant's complaints to The Law Society of Tasmania concerning two legal practitioners and that she enjoyed the sight of two members of The Law Society of Tasmania robbing the Defendant and forcing him to return to Sydney;
that the Plaintiff had behaved in a manner which displayed contempt for the Defendant;
that the Plaintiff had behaved in an ignorant way towards the Defendant and his complaints;
that the Plaintiff was dishonest;
that the Plaintiff had concealed the Defendant's complaint to The Law Society of Tasmania concerning two legal practitioners;
that the Plaintiff was a party to a conspiracy to act contrary to the best interests of the Defendant;
that the Plaintiff was a party to a conspiracy with and involving the two solicitors against whom the Defendant had complained to The Law Society of Tasmania;
that the Plaintiff is dishonest;
that the Plaintiff suffers from a severe mental illness;
that the Plaintiff is a psychopath;
that the Plaintiff ignored the Defendant's complaint to The Law Society of Tasmania concerning two legal practitioners and behaved improperly by doing so;
that the Plaintiff had engaged in fraudulent conduct;
that the Plaintiff rejected complaints against solicitors without property investigating or causing to have those complaints investigated;
that the Plaintiff had rejected almost all complaints that had come to The Law Society of Tasmania on the ground that the complaint was vexatious and without substance;"
In respect of the second article, the imputations set out below are admitted to be contained in the publication, but are denied to be defamatory.
"that the Plaintiff was dishonest;
that the Plaintiff had dismissed virtually every complaint about a [sic] solicitors that she has ever received at The Law Society of Tasmania without proper investigation;
that the Plaintiff had failed to discharge her duties and obligations as the Executive Director of The Law Society of Tasmania by in particular failing to act on complaints from members of the public against legal practitioners;
that the Plaintiff had ignored complaints that had been sent to her in her capacity as Executive Director of The Law Society of Tasmania from members of the public of and concerning solicitors;
that the Plaintiff had ignored and concealed complaints to please her corrupt masters;
that the Plaintiff had defamed complainants;"
In respect of the third article, the imputations set out below are admitted to be contained in the publication, but are denied to be defamatory:
"that the Plaintiff in her capacity as Executive Director of the Law Society of Tasmania had acted improperly in the disposition of complaints made by persons of and concerning legal practitioners;
that the Plaintiff has destroyed persons;
that the Plaintiff was corrupt;
that the Plaintiff was dishonest."
As to the issue of whether the admitted imputations are defamatory, no further pleadings are required. It is a matter for the judge or jury to decide at the trial. The test is whether applying prevailing moral or social standards, a reasonable person would think less of the person to whom the imputation attaches. In Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505 - 506, Brennan J (as he then was) explained:
"… the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne's reasonable men (Capital and Counties Bank v Henty (1882) LR 7 App Cas 741, at p 745 ) or Lord Atkin's right-thinking members of society generally (Sim v Stretch (1936) 52 TLR 669, at p 671 or Lord Reid's ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd (1964) AC, at p 260 ) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane (1937) 1 KB 818, at p 833, being a standard common to society generally (Miller v David (1874) LR 9 CP 118; Myroft v Sleight (1921) 90 LJKB 883; Tolley v JS Fry & Sons Ltd (1930) 1 KB 467, at p 479)."
Mr Trustrum has indicated by his pleading that he admits that he published of and concerning Mrs Martin, in the second and third articles, some defamatory imputations which have caused injury to her reputation. He has admitted that he has published other imputations, such as the imputations that Mrs Martin is a psychopath; engaged in fraudulent conduct; was corrupt and was dishonest, but has indicated that he intends to argue to the judge or jury that upon an application of current community moral and social standards, a reasonable person would not think less of someone to whom such imputations attach.
The defence runs to 44 paragraphs, the last of which is numbered 43a. Paragraphs 1 - 40 respond solely to the imputations pleaded and depending upon Mr Trustrum's attitude to the particular imputation, contain a pleading either in the form of pars1 or 5 of his defence, which paragraphs I have already set out. Paragraphs 41, 42 and 43 deny that the articles were false and malicious. The last paragraph, being 43a, is as follows:
"The Defendant pleads the defence of qualified privilege and public interest as the material was provided for persons who are concerned with the substance of the matters which are the subject of this prosecution."
Leaving aside the denials, the only defences conceivably intended to be contained in the defence are justification and qualified protection. Mrs Martin complains that these defences have not been satisfactorily pleaded and should be excised in their current form from the defence.
The law of defamation in Tasmania is codified by the Defamation Act 1957 ("the Act"). The Act provides in s5 that an imputation by which the reputation of a person is likely to be injured is defamatory matter. Section 8 provides that it is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law, and s9 provides that the unlawful publication of defamatory matter is an actionable wrong without proof of special damage. The defence of justification is contained in s15, which is as follows:
"15 ¾ It is lawful to publish defamatory matter if ¾
(a) the matter is true; and
(b) it is for the public benefit that the publication should be made."
The defence of qualified protection is contained in s16(1). It is impossible to discern from Mr Trustrum's defence what parts of s16 he has in mind in his plea of qualified protection, but the following parts of the provision might conceivably be intended to be relied upon:
"16 ¾ (1) It is a lawful excuse for the publication of defamatory matter if the publication is made in good faith ¾
…
(c)for the protection of the interests of the person who makes the publication, or of some other person, or for the public good;
(d)in answer to an inquiry made of the person who makes the publication in relation to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is reasonably believed by the person who makes the publication to have, an interest in knowing the truth;
(e)for the purpose of giving information to the person to whom it is made with respect to a subject as to which that person has, or is reasonably believed by the person who makes the publication to have, such an interest in knowing the truth as to make the last-mentioned person's conduct in making the publication reasonable in the circumstances;
(f)on the invitation or challenge of the person defamed;
(g)in order to answer or refute some other defamatory matter published by the person defamed concerning the person by whom the publication is made or some other person; or
(h)in the course, or for the purposes, of the discussion of a subject of public interest the public discussion of which is for the public benefit."
At best, the justification plea extracting the relevant words from the standard paragraphs of the defence (ie, the equivalents par5 set out earlier) is as follows:
"The said words without the said alleged meanings, are true, in substance and in fact."
This plea is entirely unsatisfactory. The provisions of the Act which I have already set out make it plain that for the defence to apply what must be justified is the defamatory matter, ie, the imputation, and by his pleading Mr Trustrum specifically seeks to exclude the imputations alleged from his assertion of truth. There is a divergence of judicial opinion as to whether a defendant is entitled to propose a meaning or meanings different to those meanings alleged by the plaintiff and seek to justify them for the purpose of supporting a subsequent contention that the meanings which the defendant asserts are justified are so serious that there could be no further injury to the plaintiff. Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294. Even assuming, however, that Mr Trustrum is, if he wishes, free to allege his own meanings and seek to justify them, he has not done so. Further, he has not complied with r239(2)(b). Rule 239(2) is as follows:
"A defendant in an action for defamation who pleads a defence under s14 or 15 of the Defamation Act 1957 is to plead:
(a) which of the words complained of are alleged to be statements of fact; and
(b) the facts and matters relied on for the allegation that the words are true."
The justification plea is defective and there is a discretion to strike it out. The defects are of substance. Mrs Martin has been told neither what it is that is being justified, nor the facts and matters relied upon in support of the allegations. The justification pleas, namely the words quoted at the start of this paragraph, wherever appearing, will be struck out.
The qualified protection plea is contained in the defence, par43a, which I have already set out. It may be that Mr Trustrum intends to rely in support of the plea on some of the words contained in his standard form pars1 and 5, namely the assertions:
That the publications were made "in reply to the Plaintiff's letter received on 31 May, following publication of the President of the Law Society's false and misleading letter in the Mercury on 24 May";
As to good faith that the words were not "intended to be defamatory"; and
The defendant "did not mean" what is alleged.
In addition to this material, Mr Trustrum, at the foot of the first page of his pleading in lieu of including the required r79 information, has said:
"The Defendant is a retired editor and journalist and the founder of the office of the Tasmanian Legal Watchdog; a voluntary organisation of retired professionals and academics formed to monitor the activities and standards of Tasmanian lawyers, law firms and the Law Society."
These allegations, although in some respects, perhaps going to relevant matters under the Act, s16, are insufficient to identify which of the s16 matters are relied upon and do not set out in comprehensible form the facts or matters necessary to constitute a defence of qualified protection. It is a defence that a publication was made for the public good, but it would need to be pleaded not only that the publication had that propensity, but also that this was the object or purpose of the publisher. Justin v Associated Newspapers Ltd (1967) 1 NSWR 61. The s16 code defence of public good is "intended to make available in circumstances for which no specific rule has been laid down the main considerations and general principles by which the courts at common law had been guided in determining whether or not to accede to a new claim of privilege". Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 657 - 658. A mere recital that Mr Trustrum claims "qualified privilege and public interest as the material was provided for persons who are concerned …" is not sufficient to give the plaintiff fair notice of the proposed basis of defence. The fundamental function of pleading namely, "to state with sufficient clarity the case that must be met" (Banque Commerciale SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286), has not been met and the plea of qualified protection, namely par43a and the passages which I have quoted from the defence in this paragraph wherever appearing, will be struck out.
The words which I will order be struck out in connection with qualified protection defence might conceivably go to the issue of whether or not Mrs Martin should recover exemplary damages as claimed, but the inclusion of them in paragraphs which, on their face, are concerned with denying the existence of the imputations or their defamatory character is inappropriate. If Mr Trustrum wishes to assert in response to the claim for exemplary damages, for example, that the meanings conveyed were not intended, he should specifically confine that assertion to a plea expressly dealing with the damage. He should not infect his pleadings denying the alleged defamatory character of the imputations with the irrelevant assertion that defamatory meanings were not intended. "Liability for libel does not depend on the intention of the defamor; but on the fact of defamation." Cassidy vDaily Mirror Newspapers [1929] 2 KB 331 at 354.
Mr Trustrum's counterclaim is contained in the balance of his pleading commencing immediately following par43a. Firstly he alleges that the President of the Law Society of Tasmania has defamed him, but he does not allege that Mrs Martin is liable. Secondly, in his counterclaim, he alleges that Mrs Martin and the President of the Law Society conspired to defame him, and that Mrs Martin did defame him. His pleading on this second matter is as follows:
"79 ‑ The Plaintiff conspired with the President of the Law Society to give 80,000 readers of The Mercury and an estimated five million on the worldwide web that [sic] the impression that the Defendant was hiding from the Law Society.
80 ‑ The Plaintiff published that the Defendant's complaint to the Law Society was vexatious, meaning it to be annoying, aggravating, disagreeable, harassing, irritating, tormenting, troublesome, unpleasant, provoking, distressing, exasperating and upsetting.
81 ‑ The Plaintiff published that the Defendant's complaint to the Law Society was without substance, meaning that it was without. body, fabric, material texture, essence, import., meaning, significance, sincerity, quality, value or truth..
82 - The Plaintiff refused to return the complaint to the Defendant which she had dismissed, knowing that it would hinder and jeopardise the Defendant's efforts to defend himself.
83 - The Plaintiff falsely and maliciously published her letter to the Defendant, who has been greatly injured and his credit; reputation and. profession has been brought into ridicule and contempt and he has suffered loss and damage."
These paragraphs do not set out with clarity the basis upon which the claim is made. The pleading does not identify sufficiently the publication or publications complained of; does not state the content of the publication; to whom the publication was made; nor whether the meanings alleged were the ordinary and natural meaning of the words published or were apparent only to those recipients of the publication who had knowledge of some extrinsic facts.
The counterclaim, which is at pars44 - 83 and includes prayers for relief, fails to disclose a reasonable cause of action against Mrs Martin and will be struck out in its entirety.
If the defence, as I have explained it, and after the excisions which I will order, does not reflect the bases upon which the defendant proposes to defend the claim (or at least that part of it which he has not already admitted), he should promptly apply for leave to amend. These will be the orders:
(1)The following words on the cover sheet to the defence are struck out:
"The Defendant is a retired editor and journalist and the founder of the office of the Tasmanian Legal Watchdog; a voluntary organisation of retired professionals and academics formed to monitor the activities and standards of Tasmanian lawyers, law firms and the Law Society."
(2) The following words, wherever appearing in the defence, are struck out:
"in reply to the Plaintiff's letter received on 31 May, following publication of the President of the Law Society's false and misleading letter in The Mercury on 24 May"
"or intended to be defamatory";
"did not mean and"
"The said words without the said alleged meanings are true, in substance and in fact."
(3) Paragraph 43a of the defence is struck out.
(4) The counterclaim is struck out.
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