Poniatowska v Channel Seven Sydney Pty Ltd
[2014] SASC 95
•22 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD AND ANOR
[2014] SASC 95
Judgment of The Honourable Justice Parker
22 July 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - GENERALLY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - DEFENCES AND COUNTERCLAIM
Application by plaintiff to amend statement of claim and reply, and application by defendants to amend defence, pursuant to r 54 of the Supreme Court Civil Rules 2006 (SA). Trial part-heard and adjourned before close of cross-examination of the plaintiff.
A claim in damages for defamation. The plaintiff alleges that the defendants published a program asserting that she fraudulently received overpayments from Centrelink and successfully avoided prosecution. The plaintiff had pleaded guilty in the Magistrates Court, but eventually succeeded in having her conviction quashed on appeal.
The plaintiff sought to amend her statement of claim and reply with the effect of:
(1) withdrawing an admission that an overpayment had occurred;
(2) inserting that she was not fit to plead when she entered a plea of guilty; and
(3) inserting that she had declared all her income to the ATO in all relevant financial years.
The defendants sought to amend their defence with the effect of:
(4) particularising the defence of justification and widening the imputations at which the defence of justification is directed;
(5) widening the imputations at which the defence of fair comment is directed; and
(6) inserting a reference to a second employer in respect of which the plaintiff failed to report earnings.
Held:
(1) Amendment 1 and 2: permission refused. There has been undue delay. No persuasive reason was advanced for a substantial change in the plaintiff’s case which would require further cross-examination and evidence prolonging the trial significantly.
(2) Amendment 3: permission granted, subject to the plaintiff being required to specify the relevant financial years. There is no suggestion of significant prejudice.
(3) Amendment 4 and 5: permission granted. The proposed amendments are not likely to require a significant amount of further evidence. No significant prejudice is likely to result and counsel will have the opportunity for re-examination of the plaintiff. Whether the defences of justification and fair comment are made out is a matter for determination of the court.
(4) Amendment 6: permission granted. The proposed amendment is non-contentious and consistent with the evidence thus far.
Supreme Court Civil Rules 2006 (SA) r 54, r 54(4), r 131; Social Security (Administration) Act 1999 (Cth) s 207, s 208; Defamation Act 2005 (SA) s 23, s 24, referred to.
Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Duke Group Ltd (in liq) v Arthur Young (1991) 55 SASR 24, applied.
Poniatowska v DPP (Cth) [2010] SASC 1; Poniatowksa v DPP (Cth) (2010) 107 SASR 578; DPP (Cth) v Poniatowska (2011) 244 CLR 408; AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, considered.
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD AND ANOR
[2014] SASC 95Civil: Application
PARKER J: This ruling concerns applications by both the plaintiff (Ms Poniatowska) and by the defendants (Channel 7) for permission under r 54 to amend pleadings during the trial of an action for damages for defamation. For the reasons that follow I grant permission to make certain amendments to the pleadings but refuse permission for several other amendments.
The proceedings
Ms Poniatowska has alleged that she was defamed by Channel 7 in a program broadcast on 26 October 2011 in most jurisdictions other than South Australia. The program was republished on the internet.
Ms Poniatowska’s statement of claim refers to an allegation in the program that she had avoided prosecution for claiming $20,000 in single parent benefits to which she was not entitled and then found a loophole in social security law that had enabled her to escape prosecution. The defamatory imputations relied upon in her pleadings include that she was guilty of fraud, was a cheat and dishonest, had taken money from taxpayers without paying it back and had got away with fraudulent and dishonest behaviour.
Channel 7 has pleaded defences of justification or substantial truth, contextual truth, fair comment or honest opinion, qualified privilege in the ordinary sense and also the constitutional qualified privilege protecting the discussion of government and political matters.
In 2009 Ms Poniatowska pleaded guilty in the Magistrates Court to 17 counts of obtaining a financial advantage contrary to s 135.2 of the Criminal Code Act 1995 (Cth). The magistrate entered a conviction and imposed one penalty of 21 months imprisonment but ordered her immediate release upon condition that she enter into a recognizance for a period of 24 calendar months in the sum of $10. An appeal to a single judge of this Court against the conviction was dismissed.[1]
[1] Poniatowska v DPP (Cth) [2010] SASC 1.
Ms Poniatowska then successfully appealed to the Full Court.[2] The Full Court held that while an offence under s 135.2 could be committed by omission, an omission will only attract criminal liability if it constitutes a failure to perform a legal obligation. Of itself, s 135.2 did not create a legal obligation to act. The conviction was set aside as the admitted facts could not support the charges that had been laid in the complaint. An appeal by the Commonwealth DPP to the High Court was dismissed.[3] The reasoning of the High Court was consistent with that of the Full Court.
[2] Poniatowska v DPP (Cth) [2010] SASCFC 19; (2010) 107 SASR 578.
[3] DPP (Cth) v Poniatowska [2011] HCA 43; (2011) 244 CLR 408.
The defamation trial is part heard. Thus far, the hearing has occupied eight sitting days and is set down for a further six days. The parties are to file written submissions thereby reducing, to some extent, the number of additional sitting days.
After giving her evidence in chief Ms Poniatowska was cross-examined for about five days. Counsel for Channel 7 did not close his cross-examination at the time the trial was adjourned because counsel for Ms Poniatowska had foreshadowed an application to amend the pleadings. But for that fact, my understanding is that the cross-examination would have closed at the time of the adjournment.
Permission to amend pleadings
Rule 54(4) provides that an amendment may be made to a document filed by a party with the court’s permission or with the consent of all other parties or as authorised by sub-r (5). As neither party has consented to the amendments sought to be made by the other party, and as sub-r (5) does not apply in the present circumstances, the permission of the court is required.
Matters that may need to be taken into account in determining whether a late application for permission to amend should be granted were listed by Bleby J in Channel Seven Adelaide Pty Ltd v Manock.[4] His Honour extracted those matters from the judgments of the High Court in AON Risk Services Australia Ltd v Australian National University[5] and Queensland v JL Holdings Pty Ltd.[6] The matters are:
[4] [2010] SASCFC 59 at [46].
[5] [2009] HCA 27; (2009) 239 CLR 175.
[6] [2007] HCA 1; (1997) 189 CLR 146.
1Whether there has been undue delay in making the application;[7]
2The extent to which there will be wasted public resources in granting the amendment;[8]
3Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;[9]
4Whether a trial date would need to be vacated or a trial adjourned;[10]
5Whether there is any satisfactory reason for the delay in applying;[11]
6Whether the point to be raised by the amendment would be raised in any event at the trial;[12]
7The likelihood of strain and uncertainty being imposed on the litigants;[13]
8Whether any further delay would undermine confidence in the administration of civil justice;[14]
9Any other prejudice likely to be suffered by the other party;[15]
10The additional costs likely to be incurred.[16]
[7] AON Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [24], [102]; (2009) 239 CLR 175 at 189, 214.
[8] Ibid at [24]; 189.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid at [28]; 191.
[13] Ibid at [30], [100] – [101]; 192, 214.
[14] Ibid at [30], [35]; 192, 194 – 195.
[15] Ibid at [102]; 214.
[16] Ibid.
Counsel for Ms Poniatowska referred to the matters listed by Perry J in Duke Group Ltd (in liq) v Arthur Young.[17] Those principles were expressed in the context of an application to amend pleadings during the course of a trial. The principles may be summarised thus:
1An amendment should be allowed at any stage to enable the real matters in controversy to be addressed, provided that the amendment can be made without injustice to the other party.
2An amendment should be allowed during the course of a trial if it could have been pleaded when the defence was first filed provided that it does not give rise to prejudice to the other party which cannot be dealt with by an order for costs or an adjournment.
3An amendment to pleadings should not be permitted where, if pleaded initially, it could have been struck out as bad in law or on some other ground.
4Where a proposed amendment to a plea is sought to be made during a trial lacks particularity, there is a discretion to refuse the amendment if it would inevitably give rise to an application for better particulars thereby disrupting the ordinary progress of the hearing.
[17] (1991) 55 SASR 24 at 26.
The amendments sought by the plaintiff
Ms Poniatowska seeks to make three different amendments to her third statement of claim filed on 18 March 2013 and her third reply filed on 3 February 2014.
Withdrawal of the admission of an overpayment
The first amendment sought to be made by Ms Poniatowska concerns paragraph 9 of the third statement of claim. The opening two sentences of paragraph 9 currently state:
The story did not provide any explanation for the overpayment that had been made by Centrelink and did not disclose that the plaintiff had repaid to Centrelink the amount of the overpayment. The amount of the overpayment was $21,000, and the said amount was repaid in full in September 2009.
It is unnecessary to set out the remainder of paragraph 9.
The first sentence of paragraph 9 has not changed in any way since Ms Poniatowska filed her original statement of claim on 7 May 2012. The second sentence, referring to repayment, was added by her second statement of claim filed on 25 July 2012.
The proposed amendment seeks to withdraw the admission made by Ms Poniatowska that she had been overpaid by Centrelink. It would do so by adding the word “alleged” before the word “overpayment” in the first sentence. It is also sought to add the words “(which is not admitted by the plaintiff)” after the word “overpayment”. During submissions, counsel for Ms Poniatowska also sought permission to add the words “alleged” before the word “overpayment” each time it appears later in paragraph 9.
Counsel informed me that Ms Poniatowska had not appealed against the Centrelink decision made in 2007 that she had been overpaid but might now seek to do so. I was informed that she does not admit the size of the overpayment. Whether the relevant Commonwealth legislation would permit an appeal after so many years against the existence of a debt that has long been repaid does not need to be explored.
The single judge noted that the magistrate had been informed during sentencing submissions that Ms Poniatowska had made full restitution of about $20,000.[18]
[18] Poniatowska v DPP (Cth) [2010] SASC 1 at [5].
Counsel for Ms Poniatowska sought to justify the proposed amendment on the basis that Channel 7 had relied on there being an overpayment so as to justify the imputations made in the television program. Counsel also suggested that the questioning of Ms Poniatowska during cross-examination had been on the basis that the overpayment was merely alleged.[19] However, she did admit having received money from Centrelink by way of parenting payments in the amount of the alleged overpayment and also admitted that she had not paid that money back for quite some time after the date of receipt. Moreover, the effect of her evidence has been that she did not understand how the overpayment had been calculated as distinct from disputing its existence.
[19] Transcript at 734 – 738.
Counsel for Ms Poniatowska also submitted that Channel 7 would not suffer any prejudice if the proposed amendment was to be allowed. Channel 7 could call Centrelink officers to give evidence. Witness statements prepared by three officers for use if the prosecution had gone to trial had been tendered in these proceedings. One of those statements set out in detail the circumstances of the overpayment and the method of calculation. The tender was on a limited basis, ie merely to establish that the case that the Commonwealth DPP was going to advance had the matter gone to trial rather than as evidence of the truth of that case.
While s 207 of the Social Security (Administration) Act 1999 (Cth) would ordinarily prohibit Centrelink officers from giving evidence about Ms Poniatowska’s dealings with that agency, s 208 authorises disclosure with the express or implied consent of the subject of the information. In his reply counsel for Ms Poniatowska informed the court that she now consented to the three Centrelink officers and any other relevant officer giving evidence in court. However, she did not consent to them disclosing information to the legal representatives of Channel 7.
Thus, counsel for Channel 7 would need to call evidence in chief from the Centrelink officers without having been able to proof them as witnesses. Counsel for Ms Poniatowska submitted that she was under no obligation to assist Channel 7. Moreover, Channel 7 merely needed to call the Centrelink officers to prove the contents of their witness statements. However, I expect that the Centrelink officers would then be extensively cross-examined by counsel with the aim of disproving the overpayment. That must prolong the trial and probably significantly so.
In addition to the prolongation of the trial, counsel for Channel 7 may need to extend his cross-examination of Ms Poniatowska about the alleged overpayment. The slow progress thus far of the cross-examination suggests that may be a protracted task.
There has clearly been much delay in making the application. At all times since the filing of her original statement of claim on 7 May 2012, Ms Poniatowska has conceded that she had been overpaid. The late withdrawal of that admission will change fundamentally the case to be met by Channel 7. If permission were now to be granted to retract the admission, there will be a waste of public resources occasioned by the prolongation of the trial. That may undermine confidence in the administration of civil justice. Moreover, and of greatest significance, no persuasive reason has been advanced in support of the proposed change.
I consider that the combined effect of these several factors outweighs the countervailing consideration that an appropriate costs order might be made in favour of Channel 7 to cover the extra expense that it would incur should permission be granted.
I therefore decline to grant permission under r 54 for Ms Poniatowska to amend paragraph 9 of her statement of claim and also refuse permission under r 158 for her to withdraw the admission that she had been overpaid by Centrelink.
Fitness to plead
Ms Poniatowska also seeks permission to amend her reply so as to plead that she was not fit to enter a guilty plea before the Magistrates Court. Channel 7 opposes the amendment on the basis that it would greatly prolong the trial and no satisfactory reason has been provided for it being sought so late.
Ms Poniatowska first pleaded in her second reply filed on 17 July 2013 that she had entered a plea of guilty before the magistrate due to her reliance upon incorrect legal advice. At no time has she pleaded a lack of mental capacity or fitness to plead.
Ms Poniatowska’s counsel has submitted that the amendment has become necessary as the defendants have put in issue on many occasions during cross-examination the alleged admission made by Ms Poniatowska through her guilty plea that she had defrauded Centrelink. It was also submitted that Channel 7 has also put in issue her state of mind at the time of her guilty plea. However, I note that the latter issue was first introduced during Ms Poniatowska’s evidence in chief.
Paragraph 10.1.4 of the defence filed by Channel 7 provides some of the particulars of the defences of justification or substantial truth. It 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 filed on behalf of Ms Poniatowska responds to paragraph 10.1.4. It currently states:
The plaintiff admits paragraph 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 faulty and hence a nullity. It was corrected on the appeals before the Full Court of the Supreme Court and the High Court.
Ms Poniatowska now seeks permission to insert an additional sentence immediately following the first sentence of paragraph 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.
Channel 7 has submitted that the proposed amendment confuses the different concepts of diminished mental capacity and fitness to plead. This issue could be dealt with by way of modified drafting and, of itself, is not a basis to refuse permission.
Due to the plea by Ms Poniatowska that she had only pleaded guilty because she had received incorrect legal advice, and the unfairness to Channel 7 that would be occasioned if she was permitted to retain legal professional privilege over that advice, I ruled early in the trial that she had waived privilege over that advice. Thereafter, documents held on the files of several lawyers who had acted for her in relation to the criminal proceedings have been tendered by counsel for Channel 7.
Counsel for Ms Poniatowska tendered a report dated 3 July 2009 provided by a psychiatrist, Dr Czechowicz, to her then solicitor, Mr Lutt of the Legal Services Commission. The substance of that report was that she was suffering from a significant psychiatric disorder and her capacity to stand trial at that time would be impaired. Her capacity would need to be reviewed after the taking of the medication prescribed by Dr Czechowicz.
Ms Poniatowska received advice from an experienced barrister based upon that report before instructing that she intended to plead guilty. Her mental capacity or fitness to plead was not raised on appeal before the single judge of this court, the Full Court or later the High Court.
Several other reports prepared by Dr Czechowicz in 2009 and 2010 have also been referred to in evidence and submissions. Those reports have not been prepared in accordance with the relevant rule and practice direction.
The court has been informed that Dr Czechowicz has prepared a report for use in these proceedings in accordance with the rule and practice direction. That report relates to the assessment of damages arising from a psychiatric disorder allegedly caused by the publication which is the subject of the defamation claim.
The court has also been informed that Channel 7 had arranged for Ms Poniatowksa to be examined by a psychiatrist for the purpose of these proceedings.
Counsel for Channel 7 has submitted that if the amendment is permitted it would be necessary to call evidence from a number of witnesses (eg her former lawyers) concerning Ms Poniatowska’s mental state in July 2009. It would also be necessary to explore the content of the discussions between her then counsel and Dr Czechowicz. Ms Poniatowska will also need to be further cross-examined. It may be necessary for a further psychiatric report to be obtained and possibly a further medical examination conducted.
The proposed amendment would also effect a substantial change in the case advanced by Ms Poniatowska. The need for further cross examination of Ms Poniatowska and for other witnesses to be called would undoubtedly lengthen the trial significantly. However, any such prejudice to Channel 7 might potentially be dealt with by an appropriate order for costs.
While it is correct that Channel 7 has put in issue during cross-examination the admissions made Ms Poniatowska through her guilty plea, she had plainly foreseen that approach when she elected to amend her statement of claim to assert that she had only pleaded guilty as a result of incorrect legal advice. Moreover, as I have already noted, her own counsel put the matter in issue during her evidence in chief.
I have carefully considered the principles listed by Bleby J in Channel Seven Adelaide Pty Ltd v Manock[20] and by Perry J in Duke Group Ltd (in liq) v Arthur Young.[21] I have given particular attention to the observation made by Perry J in the latter case that an amendment should be permitted where it is necessary to allow the true issues between the parties to be resolved provided that can be done without injustice to the other party.
[20] [2010] SASCFC 59 at [46].
[21] (1991) 55 SASR 24 at 26.
Having considered those several principles, for the reasons that follow, I would not grant permission for the proposed amendment relating to Ms Poniatowska’s fitness to plead.
I have taken into account the lateness of the application and, in particular, that it was not made until after Ms Poniatowska had been cross-examined for about five days.
I have also taken into account that Ms Poniatowska had been aware since August 2012 when Channel 7 filed its first defence that it relied on her guilty plea to support its pleas of truth or contextual truth. She had responded to those defences in her second reply in July 2013 (when she referred to the guilty plea being the result of wrong legal advice) but did not also seek to explain her plea by reference to her mental health.
Thus, not a great deal of weight can be given to the explanation for the lateness of the proposed amendment advanced by Ms Poniatowska’s counsel, ie that Channel 7 had made her fitness to enter a guilty plea an issue in the trial.
I am also not persuaded that the proposed amendment is necessary to allow the true issues between the parties to be resolved by the court. The issues are whether the Channel 7 program defamed Ms Poniatowska in the manner alleged and whether the various defences it relies upon are made out. Her fitness to plead is not decisive of either of those issues. Whether or not she was fit to plead does not establish that the allegedly defamatory imputations have been made out, nor does her fitness, or lack thereof, establish whether the defences relied upon by Channel 7 have or have not been established.
I have also taken into account the substantial extension of the trial that would result and the diminution of public confidence in the administration of civil justice that would arise from permitting such a substantial change in the plaintiff’s case at this point in the trial.
All income was declared to the ATO
Ms Poniatowska has sought permission to amend paragraph 5.1.6 by adding the following sentence at the conclusion of that paragraph:
The plaintiff declared all her income to the ATO in all relevant financial years.
That amendment is said to be based upon the evidence given by Ms Poniatowska to the effect that she thought that it was sufficient to declare her income to the ATO which would then inform Centrelink so that the necessary adjustment could be made to her benefit payments.
Counsel for Channel 7 submitted that the amendment was not relevant and was merely a plea of evidence. The disclosure of payments by way of sales commissions in Ms Poniatowska’s tax returns was equally consistent with her receiving or not having received the so called “commission advice”.[22] Thus, it did not advance her case. It was also contended that the amendment will require disclosure by Ms Poniatowska of all her bank accounts. Counsel also stated that Channel 7 was unsure whether reference to “all her income” included commission payments.
[22] The contention by Ms Poniatowska that she had been advised by Centrelink that her commission income only need be declared to the ATO in her tax return and the ATO would then inform Centrelink.
Counsel for Ms Poniatowska informed the court that the reference to “all income” was intended to include commission payments. That is consistent with the plain meaning of the words used. Counsel also indicated that Ms Poniatowska was willing to modify the amendment to make clear that the relevant financial years were 2005, 2006 and 2007.
While the amendment ought to have been made well before the commencement of the trial, it has not been suggested that Channel 7 will suffer any significant prejudice. I would grant permission for this amendment.
The amendments sought by the defendant
Channel 7 also seeks permission to make several amendments to its pleadings.
Revised defence of justification
Channel 7 seeks permission to amend the defence of justification, and the particulars of that defence, pleaded at paragraph 10.1 of the third defence. Counsel for Channel 7 informed me that these amendments were intended to address the imputations pleaded at paragraphs 10.4 and 10.7 of the third statement of claim that the plaintiff was able to keep the overpayment although she had committed fraud and that she took money from taxpayers without paying it back. As the third defence currently stands, Channel 7 has not pleaded justification in relation to those imputations although that plea has been made in respect of several other allegedly defamatory imputations.
Channel 7 seeks to amend paragraph 10.1 of the third defence by referring to the imputations alleged in paragraphs 10.4 and 10.7 of the claim. In addition, Channel 7 seeks to add new paragraphs 10.1.15, 10.1.16 and 10.1.17 to the particulars of truth or substantial truth pleaded in the third defence. It is unnecessary to set out in full the text of the proposed additional particulars.
The proposed additional particulars would allege that in August 2007 Centrelink took steps to recover the overpayments made to the plaintiff and from that time until August 2009 deductions were made by Centrelink from her fortnightly benefits so as to partially recover the overpayment. Paragraph 10.1.16 would state that Ms Poniatowska derived a financial advantage by keeping the overpaid benefits until 17 August 2009 while paragraph 10.1.17 would refer to the fact that on 17 August 2009 Ms Poniatowska made a payment of over $17,000 to Centrelink.
Channel 7 also seeks permission to amend the particulars set out in Schedule A of the defence by adding a paragraph (e) to the effect that Ms Poniatowska retained the overpaid benefits until Centrelink took steps to recover those amounts and thereby derived a financial advantage. In addition, permission is sought to add paragraphs 32, 33 and 34 to Schedule A. Those paragraphs would effectively repeat the material proposed to be added at paragraphs 10.1.15, 10.1.16 and 10.1.17.
Counsel for Channel 7 submitted that the need for these amendments arises from the answers given by Ms Poniatowska in cross-examination. Channel 7 had been cautious in pleading justification of the imputations pleaded in paragraphs 10.4 and 10.7 because the true state of affairs concerning the repayments was within the plaintiff’s knowledge only and had not been fully revealed by the pleadings and disclosure. Furthermore, counsel submitted that the amendments will not have the effect of changing Channel 7’s case and nor will they require any further evidence to be led. Thus, it was submitted that the amendments would not disrupt the trial or cause any delay or additional cost. If there was any prejudice, which is denied, that could be cured by an appropriate order for costs.
Counsel for Ms Poniatowska submitted that there had been undue delay in seeking these amendments because Channel 7 was well aware prior to the trial of the relevant facts. Channel 7 had known even before the broadcast of the program that Ms Poniatowska had made full repayment to Centrelink. That fact had been referred to in the reasons of the magistrate and was repeated by David J.[23]
[23] Although not by the Full Court or High Court, contrary to the suggestion made by counsel for Ms Poniatowska.
Counsel submitted that Ms Poniatowska would have to go back into examination in chief to explain why the overpayments did not constitute a financial advantage to her. Counsel also submitted that Channel 7 had not sufficiently particularised which payments constituted overpayments and gave rise to a financial advantage nor properly particularised what steps Centrelink took to recover the overpayments. That would require an application for better particulars and “blow out the case at least twofold”.
I do not accept the contention that Ms Poniatowska would have to go back into examination in chief to say why the overpayments did not constitute a financial advantage. I also reject the submission that particulars of the steps taken by Centrelink to recover the overpayment would be needed. The details of the overpayment and the recovery arrangements appear in documents tendered in evidence and have, at least to some degree, been referred to in Ms Poniatowska’s oral evidence. Whether or not the overpayments constituted a financial advantage is a question to be decided by the court.
Counsel for Ms Poniatowska further submitted that this element of the defence would have been struck out if it had been pleaded initially. That was said to be because the amendments cannot answer the relevant imputations as they do not satisfy the requirements of s 24 of the Defamation Act 2005 (SA) and the cognate provisions in other jurisdictions. Counsel referred to the decision of the New South Wales Court of Appeal in Fairfax Media Publications Pty Ltd v Kermode.[24]
[24] [2011] NSWCA 174; (2011) 81 NSWLR 157.
The proposed amendments relate to the defence of truth or substantial truth under s 23. There has been no application to amend the pleadings relating to the defence of contextual truth under s 24. Nevertheless, I have taken this to be a submission by way of analogy in support of the submission that follows.
Counsel also submitted that it could not seriously be suggested that a member of the public who was told that Ms Poniatowska, being under a misapprehension as to how the social security system worked, obtained a financial advantage by having the use of some money for a period before repayment was so damaging to her reputation as to outweigh the imputation that she was a fraud, a cheat and dishonest.
The defect in that submission is that whether or not Ms Poniatowska honestly misapprehended how the system worked is a question to be decided by the court. Furthermore, the story published by Channel 7 did not specifically state that Ms Poniatowska was able to keep the overpayment and not pay the money back. Whether or not those imputations arise must be determined by the court.
I consider that the proposed amendments do seek to traverse the imputations pleaded in paragraphs 10.4 and 10.7. Whether or not the plea of justification under s 23 is made out will be determined by the court. I consider that Channel 7 has sufficiently explained its delay in seeking these amendments.
I also do not accept the contention that Ms Poniatowska would be prejudiced by having given evidence on the basis of what her counsel described as an admission that the imputations quoted in paragraphs 10.4 and 10.7 were not justified and without being aware of the significance of the overpayment issue. In relation to the latter point, I note that she has pleaded at paragraph 9 of her statement of claim that she had repaid the overpayment in full in September 2009. She was also cross-examined at some length about the overpayment and her counsel will have the opportunity in re-examination to seek to clarify her evidence if he considers that necessary.
I would allow the amendments sought by Channel 7 relating to the plea of justification.
Widening of the fair comment defence
Channel 7 also seeks permission to amend paragraph 10.3 of its third defence. At present, paragraph 10.3 relevantly states as follows:
The imputations alleged in paragraphs 10.1-10.3, 10.5, 10.6, 11.1-11.4 of the claim constituted fair comment ...
The proposed amendment seeks to vary paragraph 10.3 so that it reads:
The imputations alleged in paragraphs 10.1-10.7, 11.1-11.4 of the claim constituted fair comment
While counsel for Channel 7 did not specifically address the broadening of the fair comment defence to cover the imputations pleaded in paragraphs 10.4 and 10.7, I infer that they have been sought on the same basis as the proposed changes to the defence of justification based upon the assertion that Ms Poniatowska derived a financial advantage by being able to retain the amount overpaid for up to two years. Counsel for the plaintiff addressed the proposed amendments relating to fair comment as part of his global submission. I cannot see any basis to refuse permission for these amendments.
Naming a second employer
Channel 7 has sought permission to amend paragraph 31 of Schedule A to the third defence by adding the words “and Hickinbothams” to the reference to Ms Poniatowska having not disclosed that she had earned commissions from AV Jennings. That amendment is not contentious. It is entirely consistent with the evidence heard thus far and was not objected to by Ms Poniatowska. I would grant permission for this amendment.
Ruling
In response to the interlocutory application filed on behalf of Ms Poniatowska on 11 June 2014 seeking permission of the court under rr 54 and 131 to amend her pleadings I determine as follows:
1I refuse permission to amend paragraph 9 of the statement of claim by adding the words “alleged” and “(which is not admitted by the plaintiff)”;
2I refuse permission to amend paragraph 5.4 of the reply by adding a sentence as follows:
The plaintiff also asserts that any plea was taken whilst having been of diminished capacity when she was not fit to plead.
3Subject to the requirement that the plaintiff specify the financial years to which she refers, I grant permission to add to paragraph 5.1.6 of the reply the following sentence:
The plaintiff declared all her income to the ATO in all the relevant financial years.
In response to the interlocutory application made on behalf of Channel 7 dated 6 June 2014 I determine as follows:
1I grant permission to Channel 7 to amend paragraph 10.1 and Schedule A of the defence in the manner referred to in the interlocutory application relating to the defence of justification.
2I grant permission to Channel 7 to amend paragraph 10.3 of the defence by varying the imputations said to be subject to the fair comment defence.
3I grant permission to Channel 7 to amend paragraph 31 of Schedule A to the defence by inserting the reference to earnings from Hickinbothams.
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