Poniatowska v Channel Seven Sydney Pty Limited (No 3) - [2014] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LIMITED & ANOR (No 3)
[2014] SASC 159
Reasons for Decision of The Honourable Justice Parker
31 October 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
Application by plaintiff to amend reply pursuant to r 54 of the Supreme Court Civil Rules 2006 following close of both parties' evidence at trial.
An application for an identical amendment had been refused earlier during the course of trial. The plaintiff contends that the evidence given by witnesses since has put into issue the subject matter sought to be traversed by the amendment.
Held:
Application refused. The evidence does not support the amendment.
SUPREME COURT CIVIL RULES (SA) r 54, referred to.
Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Dare v Pulham (1982) 148 CLR 658; Leotta v Public Transport Commission (1976) 50 ALJR 666; Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, considered.

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LIMITED & ANOR (No 3)
[2014] SASC 159
Civil

PARKER J: This ruling concerns the renewal of an application by the plaintiff (Ms Poniatowska) for permission under r 54 to amend her Statement of Claim, following the conclusion of evidence in the trial of an action for damages for defamation. The parties have closed their cases.
The background to the application is set out at [2] to [6] of the reasons[1] for the previous ruling published on 22 July 2014 and need not be repeated.
Put simply, the defendants (Channel 7) contend that the content of the broadcast referring to Ms Poniatowska was justified by, among other matters, her guilty plea even though the 17 charges were later found to be legally defective by the Full Court of this Court and by the High Court. She has replied by asserting that her guilty plea was attributable to poor legal advice. She now seeks to add that she was mentally unfit to enter her plea.
[1] [2014] SASC 95.
For the reasons that follow, I refuse permission for the plaintiff to make the proposed amendment.
Background
As already noted, on 22 July 2014 the Court published reasons and orders in response to applications by both Ms Poniatowska and Channel 7 to amend their pleadings. Permission was granted in some instances, but not in others, and permission was refused for an identical amendment.
The proposed amendment relates to para 5.4 of the Third Reply filed on behalf of Ms Poniatowska. Paragraph 5.4 of the Third Reply responds to para 10.1.4 of the defence filed by Channel 7.
Paragraph 10.1.4 provides as follows:
The plaintiff originally pleaded guilty to 17 counts of “obtaining a financial advantage from the Commonwealth knowing there was no entitlement to it”.
Paragraph 5.4 of the Third Reply currently states:
The plaintiff admits para 10.1.4 but says that she did so on the basis of legal advice which was incorrect. Additionally, she pleaded guilty to the complaint which was false and hence a nullity. It was corrected on appeals before the Full Court of the Supreme Court and the High Court.
The proposed amendment seeks permission to insert an additional sentence immediately following the first sentence of para 5.4. That sentence is:
The plaintiff also asserts that any plea was taken whilst having been of diminished capacity when she was not fit to plead.
On the earlier occasion, counsel for Ms Poniatowska submitted that the amendment had become necessary as the defendants had put in issue on many occasions during cross-examination her alleged admission that she had defrauded Centrelink. It was also submitted that Channel 7 had put in issue her state of mind at the time of her guilty plea although I noted that this issue had, in fact, first been introduced during her evidence-in-chief.
The principal submission now made on behalf of Ms Poniatowska in support of the proposed amendment is, in essence, a further development of her previous submission. It is said that the circumstances have now changed following the evidence given by Ms Geraldine Davison[2] and Dr Czechowicz.
[2] While Ms Davison has been a Judge of the District Court for some years, I have not used her judicial title as the events referred to in her evidence relate to her earlier role as a barrister.
Counsel for Channel 7 led evidence from Ms Davison that Ms Poniatowska had provided written instructions (previously tendered by the plaintiff as P12) to Ms Davison’s instructing solicitor, Michael Lutt of the Legal Services Commission, confirming her earlier instructions that she intended to plead guilty to all 17 counts relating to the alleged obtaining of moneys from Centrelink to which she was not entitled. The written instructions also noted that Ms Poniatowska had read the report of Dr Czechowicz, dated 2 July 2009, and that she was aware of the conversations between him and Ms Davison as to the state of her mental health. She went on to confirm that she had been able to reach a decision to enter a guilty plea on 6 July 2009, subject to her mental health remaining as it was at the time she signed the instructions. While the document was undated, Ms Davison’s evidence was that it had been signed on 3 July 2009.
The reference in the instructions given by Ms Poniatowska to a report of Dr Czechowicz, dated 2 July 2009, is clearly intended to refer to the report dated 3 July 2009 (tendered as P33). Dr Czechowicz had examined Ms Poniatowska on 2 July 2009. He stated in his report that she had been very distressed when he examined her. He reported that she had:
... significant paranoid features and in the current situation I considered that her capacity to stand trial would be impaired. She said that she felt unable to deal with the current situation and she believes that a fair trial is not possible.
Dr Czechowicz reported that he considered her to be psychotic and had prescribed antipsychotic medication. He had also advised her to continue her antidepressant medication and advised her GP to consider a possible admission to a psychiatric hospital, should her condition start to deteriorate. She had informed Dr Czechowicz that she was not ready to stand trial on 6 July 2009, and that an adjournment should be sought. That was also his assessment. Her capacity to give evidence, and whether that had improved after the taking of the medication he had prescribed, would need to be reviewed. Her attendance in court, coupled with the likely media attention, was likely to make her current condition worse.
Ms Davison stated that Ms Poniatowska was upset when she had seen her on 3 July 2009. She said that she had not pressured Ms Poniatowska to plead guilty, nor had she seen Mr Lutt do so.
While Ms Davison did not specifically recall the conversation with Dr Czechowicz, she said that she would have spoken to him as recorded in the document so as to ensure that Ms Poniatowska had capacity to understand what she was doing and was aware of the consequences. While Dr Czechowicz had referred in his report to Ms Poniatowska’s lack of fitness to stand trial, Ms Davison stated that she would not have allowed Ms Poniatowska to plead guilty on 6 July 2009 if she had not satisfied herself that she was fit to do so (thereby avoiding a trial). She agreed that if an adjournment had been sought, relying on the report of Dr Czechowicz dated 3 July 2009, it was likely to have been granted by the Magistrates Court.
Ms Poniatowska gave evidence that the events relating to the criminal proceedings were very stressful, and she was very concerned about her health. Dr Czechowicz had given her very strong antipsychotic medication and said that he was considering admitting her to a psychiatric hospital. She had wanted Ms Davison to ask for an adjournment, as she was incapable of going to trial. Even though she considered herself to be innocent, she said that she had signed the document giving instructions to enter a guilty plea as “you never know how trials go”. While she had not read the document, she understood its effect. She did not have a clear recollection of reading the report of Dr Czechowicz before signing the document.
In cross-examination, Ms Poniatowska stated that she had been very sick at the relevant time, and had signed the written instructions so as to make the situation go away as she did not regard herself as well enough to stand trial. She thought that Ms Davison had mentioned something about her conversation with Dr Czechowicz. She also said that she felt pressured because Ms Davison had advised her that an application for an adjournment would not have succeeded.
Counsel for Ms Poniatowska has drawn support from a judgment of the High Court in Mummery v Irvings Pty Ltd.[3] While the case concerned a civil trial before a jury, Dixon CJ, Webb, Fullagar and Taylor JJ held that it was proper to approach the matter as if the judge had rejected an application to amend the pleadings.[4] As the particular issue had been raised before the jury, the respondent was not in a position to resist an application to re-open the plaintiff’s case. McTiernan J concurred in a separate judgment.[5]
[3] [1956] HCA 45; (1956) 96 CLR 99.
[4] Ibid at 111-112.
[5] Ibid at 127.
That authority was followed by the High Court in Dare v Pulham.[6] There the High Court also followed Leotta v Public Transport Commission,[7] where it had been held that a failure to amend particulars to accord precisely with the facts which had emerged in the course of evidence would not necessarily preclude a plaintiff from seeking a verdict on a cause of action alleged in reliance upon the facts actually established by the evidence.
[6] [1982] HCA 70; (1982) 148 CLR 658.
[7] (1976) 50 ALJR 666.
Counsel also placed reliance upon Vale v Sutherland,[8] where the High Court adopted with approval the statement by Dawson J in Banque Commerciale SA v Akhil Holdings Ltd[9] that:
... modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties ... cases are determined on the evidence, not the pleadings.
[8] [1982] HCA 26; (2009) 237 CLR 638 at 651 [41].
[9] [1990] HCA 11; (1990) 169 CLR 279 at 296-297.
The primary submission made by Channel 7, in opposition to the proposed amendment, is that the evidence of Ms Davison and Dr Czechowicz does not support a plea that Ms Poniatowska was of diminished capacity or unfit to plead.
When Dr Czechowicz was re-called to give evidence in rebuttal, he was asked whether he held an opinion concerning Ms Poniatowska’s legal capacity to enter a guilty plea. That question was objected to on the basis that it had no foundation in the evidence. The objection was upheld and the question not allowed. The Court also noted that the question apparently sought to evade the earlier refusal to grant permission to amend the pleadings.
The state of the evidence is that while Dr Czechowicz recalled having had various conversations with Ms Poniatowska’s legal advisers he could not remember a specific discussion about her fitness to plead. He had checked his records but could not find any note of such a conversation. Ms Davison’s evidence was that she had spoken to Dr Czechowicz to confirm that Ms Poniatowska was fit to enter a guilty plea and had satisfied herself that she had capacity to understand what she was doing and was aware of the consequences. Ms Poniatowska’s evidence was that she was suffering from a psychiatric condition (as reported by Dr Czechowicz). While she did not regard herself as guilty she had felt under great pressure and had entered the guilty plea so as to resolve the matter and because of the uncertainty of a trial.
The High Court authorities referred to by counsel for Ms Poniatowska establish that an amendment to the pleadings should be allowed so as to conform with the evidence. I do not consider that the evidence summarised immediately above supports the proposed amendment. The Court therefore refuses permission to make the amendment.