Preston v Channel Nine South Australia Pty Ltd No. DCCIV-01-897

[2003] SADC 34

Gerald David Preston v Channel Nine South Australia Pty Ltd
[2003] SADC 34

Judge Sulan
Civil

Introduction

1. On the 29^th November 2002, a Master of this Court ordered that the plaintiff provide security for costs.  The Master did not fix security at that time but adjourned the matter for further directions.  Pursuant to Rule 100.01(e)[1] of the District Court Rules (“the Rules”) the Master found that special circumstances existed and that the justice of the case required the making of the order.

   [1] [R 100.01]     [Circumstances in which security for costs may be ordered]

   100.01Security for costs may be ordered where:

   The Court may order security for costs to be furnished:

   (a)Plaintiff insolvent and nominal where the plaintiff is a mere nominal plaintiff and is in a condition of poverty or insolvency;

   (b)Plaintiff is ordinarily resident out of the State where the plaintiff is ordinarily resident out of the jurisdiction;

   (c)Residence of plaintiff misstated with intention to deceive where the residence of the plaintiff is incorrectly stated in the summons with an intention to deceive;

   (d)Authorized by statute in circumstances authorised by any statute;

   (e)Special circumstances where for special circumstances the justice of the case so requires.

2. Rule 97.01 of the Rules provides that an appeal from an interlocutory judgment of a Master shall be by way of re-hearing and in matters involving the exercise of a discretion, the Judge may exercise his own discretion without regard to the manner which it was exercised in the decision, order or direction appealed against.  I regard the appeal to be by way of re-hearing and I proceed upon that basis. 

   Background

3. The plaintiff issued proceedings claiming general damages, unspecified exemplary damages, costs, disbursements and interest to which the plaintiff claims to be entitled as a consequence of a defamatory publication made by the defendant in a televised news item.

4. In the Amended Statement of Claim dated 1^st July 2002, the plaintiff alleges that the defendant caused to be published a news broadcast on the 13^th July 1999 (“the broadcast”), which related to the topic of the murder of a woman, Vicki Jacobs, who was the former wife of the plaintiff.  The plaintiff alleges that in the broadcast it was stated that he was a member of the Victorian chapter of the Hells Angels bikie gang, that that gang was involved and had knowledge of Ms Jacobs’ murder, that police had raided the premises of the gang and that the slaying of Ms Jacobs was a horrific slaying of a young mother.  The plaintiff alleges that the cumulative effect of the words used in the broadcast carried the imputation that he was linked to the horrific slaying of a young mother as she lay sleeping with her child, that he had no respect for the lives of others, that he had no respect for the law and that he operates with a moral standard which is so deficient and callous and even beneath the most acceptable standards attributed to those in the criminal underworld.  He further alleges that the words carried the imputation that he was a member of the Hells Angels bikie gang which was an outlawed motorcycle gang and he was therefore a member of a criminal organisation and he was a person of highly questionable moral ethics and values.  He further alleges that the words in the broadcast contain an imputation that as a member of the Hells Angels, he was the sort of person who would not co-operate with the police and would not respect the authority of the law.  He further alleges that the natural and ordinary meaning of the words in the broadcast carry the imputation that the Hells Angels were linked or might have had something to do with and certainly had knowledge of, the horrific slaying of Vicki Jacobs, and that he was linked to that crime, and had something to do with the heinous murder of Vicki Jacobs and that he certainly had some knowledge of the heinous murder of Vicki Jacobs.  He further alleges that the words carry the imputation that he would have a role in the heinous murder of a young mother who had given evidence against him in his trial, that he would have a role in the heinous murder of his ex-wife, who had given evidence against him in his trial, and that he would have a role in the heinous murder of the mother of his young son as she and the youngster lay sleeping together, her having given evidence against him in his trial. 

5. In its Amended Defence dated the 19^th August 2002, the defendant denies any of the imputations alleged by the plaintiff.  Further, the defendant pleads that the following words spoken in the broadcast, “it was anticipated that perhaps, the Hells Angels who might have had something to do with or certainly had some knowledge of her murder” are fair comment on a matter of public interest and further it pleads that other words or statements made in the broadcast are fact.  Further, the defendant pleads that if the imputations as alleged by the plaintiff are made out, then they are true.  Further, the defendant alleges that the plaintiff has suffered no damage to his credit or reputation and it says that the reputation of the plaintiff is such that he is not capable of having been damaged by the alleged publication.  In support of that plea, the defendant gives particulars of the plaintiff’s previous criminal convictions, including his conviction for two counts of murder and his convictions in 1980 of four counts of armed robbery, two counts of wounding with intent to do grievous bodily harm. 

6. In his Reply, the plaintiff joins issue with the defendant and alleges malice.  Further, he denies the defence of justification.  The plaintiff alleges that he is entitled to damages for hurt feelings consequent on publication of the alleged defamatory matters. 

   The application for security for costs

7. The application by the defendant for security for costs was supported by an affidavit of Anna Williamson, the solicitor for the defendant.  In her affidavit she states that the plaintiff is presently 42 years of age and he is currently serving a 32 year non parole period commencing on the 3^rd November 1996, that he is impecunious and is unlikely to be in a position to contribute to payment of costs in the foreseeable future.  She states that the trial is likely to be lengthy and she refers to the fact that the criminal proceedings in which the plaintiff was convicted of two counts of murder, are relevant, and that they last seventy sitting days.  She submits that the following matters constitute special circumstances :

   “1.     The plaintiff is impecunious.

   2.   The plaintiff is and will remain incarcerated for a long period of time.

   3.   There is little or no prospect that the financial circumstances of the plaintiff will change for a long time.

   4.   The nature of the alleged defamation and defences.

   5.   By virtue of the plaintiff’s situation he is effectively able to run this action from the protection of prison where there is no effective sanction over the way he utilises the Court processes.

   6.   The position of the plaintiff is equivalent to a plaintiff who may be resident out of the State.”

8. The plaintiff in reply submits that his claim is neither frivolous nor vexatious.  He pleads that the defendant has had an opportunity to correct the wrongful imputations and statements and has refused to do so.  Further, he pleads malice and denies that the defence of fair comment is made out. 

   The Master’s Decision

9. In his reasons for decision, the Master took into account that the plaintiff has no assets or income and could not pay the costs ordered, should he be unsuccessful in the action.  Further that he will remain incarcerated for a considerable time so there is little or no prospect that his financial circumstances will change for a very long time.  The Master found that the plaintiff’s claim was not without merit but he concluded that the damages that the plaintiff seeks are for defamation which necessarily involves the plaintiff’s reputation and character.  In that regard, because the plaintiff had been convicted of two counts of murder and one count of attempted murder, his reputation would have to be considered in that light and it follows that any award of damages may not be significant.  He further took into account that the impecuniosity of the plaintiff resulted from his own conduct and not from the actions of the defendant.  He further took into account that the proceedings will be protracted as they involved earlier criminal proceedings concerning the plaintiff, which had lasted some seventy sitting days.  Costs which might be incurred by the defendant would therefore be high.  It was a combination of those factors which the Master concluded amount to special circumstances within the meaning of Rule 100.01(e). 

   Submissions of the Plaintiff

10. Mr Preston submitted that when the defendants published the alleged defamatory statements, he was already in custody and that they published them knowing that he was incarcerated for a long period, and chose to publish nevertheless.  He argued that those who are imprisoned for a long period should not be deprived of their right to conduct litigation, particularly in circumstances in which the defendant chose to publish material about him knowing his current circumstances.  The fact that he is impecunious and unlikely to be in a position to meet a costs order should not be sufficient to justify an order for security for costs.  He further submitted that the Master was in error in concluding that the trial would be lengthy.  He said that most of the time taken in the original trial was evidence of police witnesses, which evidence would not be relevant in the defamation proceedings.  He stated that he would be the only witness for the plaintiff and that he estimated that the trial would last four to five days.  He further submitted that if the trial was lengthy, it would be as a consequence of the defendant’s plea of justification and truth. 

    Submissions of the Defendant

11. Mr Swan, counsel for the defendant, submitted that the publication was a matter of public interest and the references to the plaintiff were a minor part of the publication.  He submitted that there is no doubt that the plaintiff is impecunious and that the plaintiff would never have to face the usual consequences of losing an action.  He is therefore in a position to pursue the action with impugnity.  He submitted that the defendant would incur significant costs in defending the action and it has no prospects of recovery, if successful.  He submitted that the special circumstances are that the plaintiff is pursuing his action from the protection of prison, that it is inappropriate for prisoners with no prospects of any early release to be able to bring actions at random knowing that they are never going to have to meet the costs if they lose.  Further, he argued that the plaintiff’s reputation is such that damages could only be minimal.  He submitted that it would be a complicated, lengthy and expensive trial.  He submitted that a combination of those factors supported the making of an order for security for costs. 

    Exercise of the Discretion

12. In Collins v Emacord Autos Pty Ltd (S6418, delivered 3^rd November 1997) the Full Court considered Rule 100.01(e).  Lander J with whom Doyle CJ and Bleby J agreed, said :

    “An order for security for costs under that Rule can only be made where special circumstances exist.  The fact that the plaintiff is impecunious would not, of itself, give rise to the making of an order : Cowell v Taylor (1885) 31 Ch D 34 at 38; Pearson v Naydler (1977) 1 WLR 899 at 902; Fletcher v the Federal Commissioner of Taxation (1992) 110 ALR 233, although of course, impecuniosity would be a highly relevant factor in determining whether an order should be made.  There must, at the end, be special circumstances which will demonstrate that the justice of the case requires the making of the order.”

    His Honour observed that the plaintiff will remain incarcerated for some time and that there is little or no prospect that his financial circumstances will change for a very long time.  He further concluded that the claim was entirely without merit.  The learned Chief Justice also concluded that the claim was wholly lacking in merit.  In my view, the overriding factor which influenced the Court to find special circumstances was that the plaintiff’s claim was wholly lacking in merit.  In the circumstances of that case there was a compelling argument that the defendant should not be required to defend an unmeritorious claim without it being secured for its costs.

13. In this case it is not disputed that the plaintiff is impecunious and that he is unlikely to be in a position to meet any order for costs in the foreseeable future.  That alone does not justify the making of an order (see Collins v Emacord Autos Pty Ltd (supra)). 

14. In Orr v Lusute Pty Ltd (1987) 72 ALR 617, Sheppard J referred with approval to the judgment in Cowell v Taylor (1885) 31 Ch D 34 in which Bowen LJ said :

    “The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity.”

    Bowen LJ referred to the exception of appeals and cases in which the plaintiff is a nominal plaintiff for the benefit of someone else.  Neither exception applies in this case.

15. Therefore, it is incumbent to ask whether there are circumstances in addition to the plaintiff’s impecuniosity which support a conclusion that there are special circumstances so that the justice of the case justify the making of the order.

16. Mr Swan submitted that the alleged defamation was a minor part of the publication.  Insofar as that submission suggests that the plaintiff has a weak or unarguable case, I do not agree.  It is not possible to make an informed judgment about the relative strengths of each party’s case based upon the material before me.  However, I conclude the interpretation of the publication as alleged by the plaintiff is certainly arguable.  The pleas of fair comment and justification by the defendant and the allegation of malice by the plaintiff can only be properly determined after the trial Judge has heard all the evidence.  They are matters which genuinely arise on the pleadings.  I cannot conclude that the plaintiff’s case is without merit.

17. The question of quantum of any damages, if the plaintiff makes out his cause of action, is not possible to determine or even to speculate upon.  Mr Swan’s submission that the plaintiff’s reputation is such that there could only be a minimal award for loss of reputation has merit, however, the issue of exemplary and aggravated damages remains.  The quantum of those damages, if the plaintiff makes out his case, will depend upon a number of factors which can only be resolved at trial.  The plaintiff alleges that he sought a retraction and that even after a complaint to the Press Council resulted in certain findings against the defendant, there was no retraction.  How those allegations may affect any final award is uncertain.  Furthermore, the manner in which the defence is conducted can be relevant to damages.  The defendant has pleaded justification and the question of the truth of the alleged imputations is therefore an issue.  If the defendant fails to establish the truth of the allegations, this could reflect in exemplary or aggravated damages.  I conclude that there are arguable issues and the plaintiff’s claims cannot be regarded as unmeritorious. 

18. As to the length and complexity of the trial, the plaintiff informed me that he will be the only witness in his case.  The trial may become lengthy and complex upon the defendant’s plea of justification.  In that regard, the length of the trial will be within the defendant’s control.  I am not persuaded that the length or complexity of the trial justifies a conclusion that special circumstances exist to justify the making of an order.  In any event, if, as a consequence of the plaintiff’s conduct, the trial becomes protracted, the defendant can renew its application for security for costs.

19. For the reasons expressed, I am not satisfied that special circumstances do exist to justify the making of an order for security for costs.  Accordingly, I order that the order for security for costs be discharged.