McDonald v The State of SA - [2012] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MCDONALD v THE STATE OF SA
[2012] SADC 54
Judgment of His Honour Judge Rice
20 April 2012
PROCEDURE
Appeal by plaintiff against the refusal by a Master to allow plaintiff to file a Proposed Amended Draft Statement of Claim.
Appeal by defendant against a Master's refusal to strike out certain paragraphs of a Proposed Amended Draft Statement of Claim relating to a claim in defamation.
Appeal by plaintiff dismissed.
Appeal by defendant allowed - paragraphs relating to defamation also struck out.
District Court Act 1991 s 43(2)(b), referred to.
Roberts v Bass (2002) 77 ALJR 292, considered.

MCDONALD v THE STATE OF SA
[2012] SADC 54
Introduction

In this matter the defendant applied before a Master that the pleadings of the second plaintiff, Mr F.T. McDonald, as contained in the Proposed Amended Draft Statement of Claim dated 3 November 2010, be struck out. For reasons expressed by the Master, the plaintiff’s application to file the Proposed Claim, was refused. The plaintiff now appeals against that refusal.
The Master refused to strike out paragraphs 379, 380 and 381 of the Proposed Claim. Those paragraphs relate to a claim in defamation linked to a document known as Document 16. The defendant has now cross-appealed that refusal and submits the Master should have also struck out those paragraphs.
A potted history of the proceedings
These proceedings commenced on 12 January 2005. The claim related to events at the Paringa Park Primary School during the period 1997-2000. At the time, the proceedings were issued in the name of son, Brennan McDonald, with this plaintiff, the father, as his next friend. As the Master put it, the Statement of Claim alleged the defendant was negligent, in breach of duty of care, was deceitful and defamed the son and caused him psychological injury, loss of dignity and reputation and discrimination in relation to his education.
Then followed a long history of interlocutory hearings relating to the pleadings. The Master also notes that, by August 2009, ten versions of the plaintiffs’ claims had been filed or lodged for consideration. By orders dated 27 August 2009, the Master struck out various of the pleadings and the claim of the first plaintiff (the father). The Master ordered that further particulars be supplied with respect to certain paragraphs and that an Amended Statement of Claim be filed on or before 6 November 2010. An appeal to Judge Nicholson was allowed in limited respects but otherwise dismissed.
On 3 November 2010, the plaintiffs filed a Proposed Amended Draft Statement of Claim, referred to by me as the Proposed Claim. This is the document about which the appeal and cross-appeal relate (although the latter is restricted to paragraphs 379-381 and Document 16).
The arguments before the Master
As mentioned, the defendant sought to have the plaintiffs’ Proposed Claim struck out. Various arguments were put forward that:
•The plaintiffs had failed to supply further and better particulars pursuant to the order of 27 August 2009.
•Paragraphs had been added in the absence of an application seeking leave.
•Various paragraphs were included that had previously been struck out, both at first instance and on appeal.
•That, in as much as the claim was based on defamation, the plaintiffs were seeking to rely upon documents discovered by the defendant in other Supreme Court proceedings and in these proceedings when there was no claim in defamation and were therefore in breach of implied undertakings preventing such use; documents are also out of time.
•There were also discrete arguments about particular documents.
The appeal by the plaintiff (father)
Extension of time
I note the initial application of the plaintiff is for an extension of time within which to appeal. The right to appeal is given by the District Court Act 1991 s 43(2)(b). The time within which to appeal is 21 days pursuant to District Court Rule 281. The appeal must be commenced within 21 days after the date of the judgment, order or decision the subject of the appeal. Pursuant to r 5, time runs from the end of the day from which the calculation is made.
In this case, the Master’s reasons were posted on 11 July 2011. By a document headed “Notice of Appeal” and dated 1 August 2011, the plaintiff sought an extension of time within which to appeal. No grounds of appeal were included. The extension of time is sought on medical grounds. Grounds of appeal were filed on 8 August 2011. Bearing in mind that, in effect, notice of an intention to appeal was given within time, and considering the medical report provided, an extension of time until 8 August 2011 is granted.
Grounds of appeal
It is not easy to discern the precise grounds upon which the plaintiff seeks to overturn the orders of the Master. The written grounds and oral argument in support were disjointed, discursive and largely irrelevant. In essence, he wants the Master’s orders set aside, that the Proposed Claim be allowed to be filed and that certain employees of the State, it being vicariously liable for their acts and omissions which injured the plaintiffs, should be listed as separate defendants.
The appellant, both in his written and oral argument, concentrated much of his submissions on the claim in defamation. That claim relates to documents 1‑17. Document 16 is discussed separately below, and I now deal with the claim as it relates to documents 1-15 and 17.
As noted above, the claim in defamation was rejected by the Master on a number of grounds, particularly that the documents were out of time. However, the plaintiff submits that a claim in defamation is extant, but the history of the various proceedings shows that not to be the case. In that situation, the Master has, with respect, correctly applied r 53.03. The Master concluded that a new cause of action in defamation cannot be added out of time unless it arises out of the same or substantially the same facts as the original cause of action. As the Master put it (para 146) “…the underlying factual basis of the defamation claim was not raised in the earlier proceedings, which were based on negligence, deceit and conspiracy.” Although there had been an earlier cause of action in defamation, none of that claim related to the documents 1-15 and 17 (plus Document 16).
It would be unnecessarily repetitious to canvass the Master’s reasons as to the reasons for his various decisions. I agree with them and, leaving Document 16 to one side, see no need to repeat that careful analysis. The order of the Master left the claim in defamation based upon Document 16 as the only remaining basis for any claim.
Document 16
Document 16 was the subject of an alternate contention by the defendant. Although the claim based on this document was also struck out, the background to its disclosure is different than the others.
It is convenient and necessary to say something about this document. The plaintiff’s son, Brennan McDonald, was enrolled in year 8 at Brighton Secondary School in January 2004. Document 16 is a Grievance Report following a grievance lodged by Mr Frank McDonald (the plaintiff for present purposes) against Mr Trevor Potts, Acting Principal, Brighton Secondary School, on 17 September 2004. The investigation into that grievance and author of the subsequent Grievance Report was Mr John Binks-Williams, District Director Metro South West, Department of Education and Children’s Services (DECS).
The Master deals with this document at paras 240-249 and finds that the document was obtained by the plaintiff from its author on or about 6 December 2004. On the basis it was not received by the plaintiff in other proceedings or as the result of an application pursuant to the Freedom of Information Act. On that basis, the Master refused to strike out the pleading. In addition to that, the Master took the view that the issue of whether the document was defamatory, and particularly whether it was actuated by malice, was more appropriately dealt with at trial.
Having expressed those views, the Master went on to find that the pleadings on this document failed for other reasons, namely, the claim in defamation was out of time and there was no basis for the application of r 53.03. Paras 379‑381 of the Proposed Claim were therefore struck out.
The matter does not rest there. As noted, the plaintiff appealed against the orders of the Master. On 10 November 2011, the matter was before the Master again, this time for directions. Argument ensued that had a bearing upon the orders made with respect to paras 379‑381 of the Proposed Claim.
It is convenient to reproduce paras 3-5 of the Ex-Tempore and Supplementary Reasons delivered that day:
[3]He [Mr Bell] drew my attention to Schedule 1 Part 5 ss 6 and 8(1) of the Defamation Act 2005 (South Australia) which amends limitation periods for causes of action in defamation.
[4]It appears that although in para 82 of my reasons I said that section 37 of the Limitation of Actions Act provided that an action for defamation was not maintainable if brought after the end of a limitation period of one year running from the time of publication of the matter complained of, I had overlooked Schedule 1 Part 6 s 8(1) which relevantly provides that s 37 applies to the publication of defamatory matter on or after the commencement of that section. The section commenced on 1 January 2006, so in the result defamatory matter published before 31 December 2005 is not subject to the one year limitation period.
[5]In the consideration of document 16 referred to in paragraphs 379-381 of the proposed claim, it is alleged that this document was published on 2 December 2004 so it is not covered by the amendment and the limitation period is not one year after publication but six years. The limitation expired on 2 December 2010 so because the proposed amendment was tabled by the plaintiffs on 3 November 2010 it is not out of time, contrary to the finding I made in paras 248 and 249 of my reasons.
In the result, paras 379-381 were not struck out, leaving the defamation claim based on Document 16 to go to trial.
In that situation, the defendant gave Notice of Alternate Contention claiming that the document was not defamatory, that it was published on an occasion of qualified privilege, that there was no malice and the defendant was not the author of the document. At the hearing of the appeal, I raised the procedural problem that the Alternate Contention should really be the subject of a cross-appeal by the defendant. I gave leave for that purpose and a Notice of Cross-Appeal was filed on 16 November 2011. The three grounds of appeal were that the document was not defamatory, was published on an occasion of qualified privilege and there was no material to support malice. It is therefore necessary for me to deal with this cross-appeal.
As mentioned, the author of the Grievance Report was Mr John Binks‑Williams. The report was being provided to Ms Day, Director, Schools and Children’s Services. The report is dated 28 November 2004 and was sent to Ms Day on 2 December 2004.
I deal first with whether the Grievance Report is capable of being defamatory. Does the report contain an imputation or imputations that have a tendency to injure the plaintiff’s reputation or are likely to injure the plaintiff’s reputation?
An examination of the report shows it to be a very measured and balanced document. It presented both points of view in relation to three issues. The report concluded, in effect, that an impasse was reached between Mr Potts, the Principal, and the plaintiff as to how to deal with the issue of whether the plaintiff’s son should have been present at a meeting between the plaintiff and the Principal. No criticism is made of the plaintiff. If anything, the report was impliedly critical of the Principal. However, the real thrust of the report was to make recommendations so as to avoid any future impasse. In my view, the document was not capable of being defamatory.
Assuming such a view is incorrect, was the publication protected by the defence of qualified privilege? The Master referred to this topic in paras 48‑49 of his reasons as follows:
[48]The defence of qualified privilege was recently considered in Tolega Pty Ltd v Sandell [2011] SASC 100. Anderson J observed that the defence is available to a person who publishes a defamatory statement in the discharge of a legal, social or moral duty where the statement is made to a person with a corresponding duty or interest to receive it – Adam v Ward [1917] AC 309 at 334. The rational for the defence is that the law places a greater premium on freedom of communication over the right of an individual to protection against damage to reputation – Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [22].
[49]Anderson J observed that the common law defence of qualified privilege involves three strands of inquiry, which can be summarised as:
‘1.     Whether the circumstances in which the communication was published were such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication, thus creating an occasion of qualified privilege (a question of law);
2.    Whether the content of the communication was “relevant, germane or sufficiently connected to that occasion or subject matter” to attract the defence (a question of fact); and
3.    If both occasion and relevance are established, whether the plaintiff can establish that the occasion was misused such as to give rise to a finding that the publisher was actuated by express malice.
See:Megna v Marshall [2010] NSWSC 686 at [50].’
With respect, I agree with that summary. Developing that third strand of inquiry further, the defence of qualified privilege is defeated if, when the defendant published the words complained of, it was actuated by express malice. Express malice will be present if it is shown by the plaintiff that the dominant motive in the defendant for the publication was to use the occasion of qualified privilege to defame the plaintiff (Roberts v Bass[1]). In my view, there is nothing on the material before me that is capable of showing the defendant was actuated by malice.
[1] (2002) 77 ALJR 292
Conclusion
The plaintiff’s appeal is dismissed.
As for the claim in defamation based upon Document 16, that part of the pleadings (paras 379-381) of the Proposed Claim are also struck out. The defendant’s cross-appeal is allowed for that limited purpose.