Moriarty and Wortley v Advertiser Newspapers Ltd No. DCCIV-96-865 Judgment No. D3800

[1998] SADC 3988

Daniel Moriarty and Russell Wortley v Advertiser Newspapers Ltd

D3800

Civil Jurisdiction

His Honour Judge Sulan

RELATING TO P.52 OF TRANSCRIPT

HIS HONOUR:  In this action a preliminary matter has arisen.  The plaintiffs seek an order that the defendant be dux litis.  The plaintiffs claim damages for defamation.   Paragraph 5 of the statement of claim alleges the publication of certain words in The Advertiser of 27 November 1995.   Although paragraph 5 pleads that the words were falsely and maliciously published, it is accepted by both counsel that in order to establish their cause of action, the plaintiffs do not have to prove that the defendant falsely and maliciously published the words alleged.  It is sufficient to found the cause of action if the plaintiffs prove the publication of the words and that the words in their natural and ordinary meaning were defamatory, that is, that they were understood to mean, in their natural and ordinary meaning, in the context in which they appear, the meaning as alleged in paragraph 6 of the statement of claim.   Paragraph 6 pleads as follows that : 

“the words meant and were understood to mean in their natural and ordinary meaning in the context of the said words that:

6.1      the plaintiffs are dishonest;

6.2      the plaintiffs have used their respective offices of Federal Secretary and organiser for personal gain beyond anything that is reasonable;

6.3      the plaintiffs have engaged in corruption and ‘rorting’;

6.4      the plaintiffs have acted with impropriety by allowing the union to conduct a business improperly.”

The defendant denies the allegations in paragraph 6 of the statement of claim.  It is accepted by both counsel that the question of whether the words have the meaning alleged is a matter for determination by the court, and neither party could lead admissible evidence which would be relevant to that issue. 

Mr Heywood-Smith for the plaintiffs submitted that once the publication was admitted, which it is, then it is a question for the court to determine whether the publication is defamatory, and if so, the plaintiffs have discharged their onus of proof and damages follow per se.  He conceded for the purposes of this preliminary question, that the plaintiffs will lead evidence, but it would be relevant only for the quantum of damages claimed.  He argued that the substantive issues to be determined in respect of liability, that being the defence of qualified privilege, is one upon which the defendant bears the onus of proof, and that it is both impractical and unfair to the plaintiffs for them to be required, in advance, to rebut a defence upon which the defendant carries the onus of proof. 

Mr Harris for the defendant accepted that, in respect of the defendant's claim of qualified privilege, based on it being an occasion of qualified privilege, first, due to the publication being made in the course of discussion of government and political matters and, secondly, it being a fair and accurate report of parliamentary proceedings, the defendant carries the onus of proof. In respect of the former ground giving rise to qualified privilege, he accepted that the defendant has the onus to establish reasonableness. The extent to which the defendant needs to lead evidence may be a matter of debate, but Mr Harris accepted that where a communication on a government or political matter is made to a wide audience, the defence will only be available if the publication is reasonable, and that the onus rests upon the defence to show that it was reasonable (see Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 117).

Mr Harris submitted that the plaintiffs carry the onus of proof to establish their plea of malice, but he accepted that that question properly arises only if the defence of qualified privilege is made out. 

In Simpson Ltd v Arcipreste (1989) 53 SASR 9, the Full Court considered a case stated by the Workers Compensation Appeal Tribunal on the question of whether the tribunal possessed the power to direct that the worker, who is a respondent, be dux litis in respect to certain issues raised by an appeal to that tribunal. I accept that in the area of workers' compensation, practices have developed as to the party who should be dux litis in the litigation. This question was discussed in Harris v AGC (Insurances) Ltd (1984) 38 SASR 303 at 308 where Olsson J, in discussing the practice in the workers' compensation jurisdiction, observed :

“There is now a well established line of authority in that jurisdiction, stemming from the reasoning of his Honour Judge O'Loughlin in General Motors-Holdens Pty Ltd v Ienco that the test to be applied is as to who has the onus of establishing the central affirmative proposition in the proceedings.  In cases of the type above adverted to it is usually the worker who is required to be dux litis to avoid the alternative consequence of the employer having to prove a negative proposition in absence of knowledge of the affirmative detailed case of the worker.”

In Simpson's case, when dealing with the question of dux litis, Cox J at page 13 stated: 

“There is thus no room for a general rule that the worker must always be dux litis regardless of whether he is appellant or respondent.  Usually the party in any court or tribunal who bears the onus of proof has the right and duty to begin, but there may be cases in which the justice of the matter calls for some variation in the normal practice.”

Duggan J said at p.22 at the bottom of the page:

“As for the so-called ‘right to begin’, it is, in most cases, a procedural consequence of the burden of proof and is subject to direction by the Court or Tribunal at the hearing.”

His Honour went on to say:

“A Court or Tribunal has the power to adopt what seems to it to be the fairest and most effective procedure for conducting a hearing.  Frequently these procedures become formal Rules of Court.  On other occasions general directions might be given in a less formal way.  At the commencement of Williams v Williams (1866) 2 LR Ch App 15, the Lord Chancellor simply announced to the Bar that he had, with the concurrence of the Lords Justices, determined that in future on the hearing of all Chancery Appeals, the appellant should begin. But in most cases a direction will be given, if necessary, on the hearing of a particular matter.

The discretionary power to make such a direction must be exercised judicially and, although the onus probandi has a considerable bearing upon the right or duty to begin, it may not be decisive in every case.  A direction can be given only after a consideration of the fairest and most effective method of resolving the issues which arise on appeal.”

I consider that the question for me is, having considered all relevant matters, what is the fairest and most effective method of resolving the issues which arise in this case? Clearly, a primary matter to be determined after publication has been proved, and which in this case is admitted, is whether the publication is defamatory.  That issue requires no further evidence.  If that is established and the defence of qualified privilege fails, damages follow per se, although the plaintiffs may choose to lead some evidence on quantum.  If they do and they are not dux litis, I consider it would be appropriate to permit the defendant to lead evidence in rebuttal on the question of quantum of damages.  In all other respects, the defendant bears the onus of proof.  On the question of liability, in establishing its defence, the defendant is likely to lead evidence. 

The situation, in my opinion, is analogous to a claim of fraud by an insurer which has refused to indemnify and is then sued pursuant to the policy.  The plaintiff need only to establish the existence of the policy.  There may be threshold questions of interpretation of the policy, but the substantive issue upon which evidence is likely to be called is one of fraud by the plaintiffs.  In those circumstances, it may be very difficult for a plaintiff to rebut a positive allegation until the defendant has led evidence in support of its plea.  In those cases, the defendant is often dux litis.  Similarly in this case, it is my view that for the plaintiff to be required to rebut a case upon which no evidence has been led, in circumstances where the defendant bears the onus of proof, will create not only unfairness to the plaintiffs but may lead to difficulties in the presentation of their case, and difficult questions may arise as to evidence in rebuttal. 

I accept that it is exceptional for the court to order a defendant to assume the position of dux litis, but it appears that this is an instance in which the overall presentation of the case and determination of the issues between the parties would be better served if the defendant were dux litis.  In my view, the fairest and most effective way of resolving the issues in this case is to direct the defendant to be dux litis, and I so order.