Preston v Harbour Pacific Underwriting Management Pty Ltd

[2004] NSWSC 520

CITATION:

PRESTON v HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD & ORS [2004] NSWSC 520

HEARING DATE(S):

15 December 2003

JUDGMENT DATE:

18 June 2004

JUDGMENT OF:

Levine J

DECISION:

1. Pursuant to SCR Pt 31 r 2 questions as to whether the matter complained of was published by the sixth defendant and, if it was, whether it carries any imputation defamatory of the plaintiff, be tried by jury before and separately from any other question in the proceedings.; 2. The plaintiff is to pay the first, second, third and fourth defendants' costs of the motion.; 3. Particulars B1-8 in the plaintiff's solicitor's letter dated 5 August 2003 (Annexure A to affidavit of M G Coffey sworn 11 December 2003) are struck out.

CATCHWORDS:

Defamation - vicarious liability -s7A trial - limited issue

LEGISLATION CITED:

Defamation Act 1974 s7A

CASES CITED:

Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41
Doan & Anor v Advanced Microdevices Inc & Ors [2003] NSWSC 560
Griffith v Australian Broadcasting Corporation [2003] NSWSC 298
New South Wales Country Press Co-operative Co. Ltd v George Andrew Stewart (1911) 12 CLR 481
Webb v Bloch (1928) 41 CLR 331

PARTIES :

ALEXANDER PRESTON
(Plaintiff)

v

HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD
(ACN 003 406 611)
(First Defendant)

TERENCE SEAN McCABE
(Second Defendant)

COLIN BRUCE PAUSEY
(Third Defendant)

CHRISTOPHER DONALD WOOD
(Fourth Defendant)

MICHAEL MAHER & ASSOCIATES PTY LTD
(ACN 002 688 566)
(Fifth Defendant)

MICHAEL MAHER
(Sixth Defendant)

FILE NUMBER(S):

SC 20900 OF 2001

COUNSEL:

A T S Dawson
(Plaintiff)

T Blackburn SC
(First defendant)

S Wheelhouse SC
(Second, third and fourth defendants)

SOLICITORS:

Gells
(Plaintiff)

Phillips Fox
(First defendant)

Acuiti Legal
(Second, third and fourth defendants)

[2004] NSWSC 520

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 18 JUNE 2004

20900 OF 2001

ALEXANDER PRESTON
(Plaintiff)

v

HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD
(ACN 003 406 611)
(First Defendant)

TERENCE SEAN McCABE
(Second Defendant)

COLIN BRUCE PAUSEY
(Third Defendant)

Christopher donald wood
(f ourth Defendant)

MICHAEL MAHER & ASSOCIATES PTY LTD
(ACN 002 688 566)
(Fifth Defendant)

MICHAEL MAHER
(Sixth Defendant)
JUDGMENT (Defamation – vicarious liability –s7A trial – limited issue)

1 By a further amended statement of claim filed on 5 September 2003 the plaintiff complains of the slander allegedly uttered by the sixth defendant to a third person. The sixth defendant, it is to be taken for the purposes of the present application, was a private investigator and the principal of the fifth defendant. The second, third and fourth defendants at all material times practiced as solicitors under the name McCabes.

2 In paragraph 6 of the pleading it is stated, “The first to fifth defendants are vicariously liable for the publication made by their servant or agent, the sixth defendant”. By notice of motion filed on 5 June 2003 McCabes relevantly moved for an order:

“2 That, pursuant to Part 31 rule 2 of the Rules, the questions as to whether the matter complained of was published by the sixth defendant and carries an imputation that is defamatory of the plaintiff be determined before and separately from any other question in the proceedings”.

3 In the application for that order the first defendant joins. The fifth and sixth defendants did not participate in the motion.

4 An affidavit of Michael Gerard Coffey sworn 11 December 2003 was filed in court, appended to it is an exchange of correspondence relating to the supply of further and better particulars. The solicitors for McCabes insisted upon a response to an earlier letter seeking particulars of the allegation in paragraph 6 of the statement of claim, namely that of vicarious liability. The following particulars were provided:

“A In answer to paragraph 6 on the issue of vicarious liability the plaintiff asserts McCabes are vicarious liability for the publication made by Maher because:
1 The second to fourth defendants (McCabes) engaged the fifth defendant and/or the sixth defendant to carry out investigations in relation to the fire and sprinkler discharge at the plaintiff’s business premises.
2 The fifth defendant and/or the sixth defendant conducted those investigations.
3 As part of those investigations the sixth defendant conducted a conversation with Barry Short in the terms set out in paragraph 4 of [the] Amended Statement of Claim.
4 That conversation with Barry Short was within the scope of the work the fifth defendant and/or the sixth defendant was engaged to conduct by McCabes.
5 Alternatively, McCabes engaged the fifth defendant and/or the sixth defendant as its representative(s) in relation to the fire and sprinkler discharge at the plaintiff’s business premises.
6 In the course of representing McCabes, the fifth defendant and/or the sixth defendant conducted a conversation with Barry Short in the terms set out in paragraph 4 of the Amended Statement of Claim.
7 In the light of the matters particularised in paragraphs 1-4 and alternatively 5-6, the fifth defendant and/or the sixth defendant was/were the servant(s) or agent(s) of McCabes.
8 McCabes, as master and or principal of the fifth defendant and/or the sixth defendant, is vicarious liability for the publication of the matter complained of”.

5 For reasons that are not immediately apparent, the solicitors for McCabes also requested particulars of material facts and circumstances on which the plaintiff relies in support of an assertion that McCabes published the matter complained of. There is no allegation in the further amended statement of claim of publication by McCabes. The foundation for their liability is asserted to be vicarious liability. In any event, the plaintiff’s solicitors provided the following particulars in response:

“B In answer to paragraph 7 the plaintiff alleges that McCabes is a publisher of the matter complained of on the following basis:
1 The material upon which the sixth defendant based the words, which he spoke as set out in paragraph 4 of the Amended Statement of Claim, included material provided to the fifth defendant and/or the sixth defendant by McCabes for the purposes of his/its investigation.
2 By providing that information to the fifth defendant and/or the sixth defendant, and in the light of matters particularised in relation to paragraph 6 of the Amended Statement of Claim above, McCabes participated in the publication of the matter complained of.
3 McCabes was, in these circumstances, responsible for the publication of the matter complained of and is to be considered as a principal in the act of publication.
4 Alternatively, McCabes engaged the fifth defendant and/or the sixth defendant as its representative(s) in relation to the fire and sprinkler discharge at the plaintiff’s business premises.
5 In the course of representing McCabes, the fifth defendant and/or the sixth defendant conducted a conversation with Barry Short in the terms set out in paragraph 4 of the Amended Statement of Claim.
6 The fifth defendant and/or the sixth defendant was/were the agents(s) of McCabes.
7 The fifth defendant spoke the words set out in paragraph 4 of the Amended Statement of Claim in his capacity as agent of McCabes, or alternatively as a servant of the sixth defendant.
8 As a principal of the fifth defendant and/or the sixth defendant, McCabes is liable as a publisher of the matter complained of”.

6 The asserted significance of the matters set out in “B”, above, did not arise until late in the proceedings before me.

7 The proceedings and submissions for both the active defendants (McCabes and the first defendant) were directed to the proposition that the only issue under s7A of the Defamation Act for determination by the jury in this litigation was whether the sixth defendant spoke and published of and concerning the plaintiff the matter set out in the amended statement of claim and whether as a matter of fact it carries the pleaded imputations and whether as a matter of fact any such found pleaded imputation was defamatory.

8 S7A of the Defamation Act 1974 is as follows:

7A Functions of judge and jury

(1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.

(2) If the court determines that:

(a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or
(b) the imputation is not reasonably capable of bearing a defamatory meaning,
the court is to enter a verdict for the defendant in relation to the imputation pleaded.

(3) If the court determines that:

(a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and
(b) the imputation is reasonably capable of bearing a defamatory meaning,
the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.
(4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is:
(a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and
(b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
(5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section.

9 It was submitted that where the foundation of liability in sued defendants rests upon vicarious liability based upon either the relationship of master and servant or principal and agent, the determination of that liability is a matter of fact and law for the trial judge, and not one reserved to the tribunal of fact for the purposes of s7A, i.e. the jury. Essential to that submission is that the named defendant whom it is sought to make vicariously liable for the sixth defendant’s publication, is not, if found vicariously liable, thereby a publisher. It is a liability distinct from that of the tortfeasor the publisher, in this case the sixth defendant. Thus a deal of time was spent on distinguishing the circumstances of the facts in the High Court decision of Webb v Bloch (1928) 41 CLR 331 where defendants played an active role, relevantly to that case, in the publication. This is said to be not a Webb v Bloch case; it may fall, in due course on the evidence to be called and decided upon by the trial judge, within the circumstances with which the High Court was concerned in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; cf New South Wales Country Press Co-operative Co. Ltd v George Andrew Stewart (1911) 12 CLR 481.

10 Here the allegation is made in the amended pleading of publication by the sixth defendant which, together with the two consequential issues of fact to which I have referred, will be for the jury’s determination in the normal course.

11 In Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 I held that the issue of republication, as there identified, was not the subject for determination by the jury under s7A; see also Doan & Anor v Advanced Microdevices Inc & Ors [2003] NSWSC 560 at [6].

12 Whilst the order sought under SCR Pt 31 r 2 would limit the jury’s role to determining the issues of publication involving the sixth defendant, should the order be made, the other defendants would have a legitimate interest in the outcome of the s7A trial and, subject to directions as to trial management, would be free to participate.

13 With all these propositions I am in agreement.

14 I reject the submission that the question of vicarious liability was in effect a matter of defence, and thus fell within s7A(4)(a). Vicarious liability is a matter for the plaintiffs to prove, but by its very nature, it not being involved with the proof of the publication of the words by the relevant defendant, it falls without the jury’s role under s7A, I find.

15 The applicant/defendants in the end will be concerned, given the order having been made, and given a jury verdict favourable to the plaintiff, with whether or not the plaintiff can prove circumstances that give rise to liability in those defendants vicariously for the tort of publishing the slander committed by the sixth defendant.

16 Up to this point one would think the matter easily could be disposed of. However, as Mr Dawson for the plaintiff pointed out, the particulars under “B”, above, purport to make a case against these defendants as “publishers”. Mr Dawson acknowledged, as indeed did the defendants, that if this was a Webb v Bloch case it would have to go to the jury on those issues. That is correct, because there the defendants are alleged to be publishers in the sense provided for in the judgment of Isaacs J at 363-366.

17 Here, Mr Dawson submits, in the light of these particulars, such an allegation in fact is being made. Further, if the relevant defendants are vicarious liable, they should be regarded as publishers in any event, and thus the issues be remitted to the jury. I have already concluded otherwise than as asserted in the second part of these submissions.

18 As I have stated above, I do not know why McCabes sought the particulars to which the answers were provided in “B” above. But what is provided by way of particulars, to the extent that they make some sense, is not in conformity with the pleading and thus I propose to strike out those particulars under “B”. Whether the plaintiff would then wish to amend the statement of claim will be a matter for him.

19 On analysis it appears that B(1), (2) and (3) seem to be groping for some case of liability for republication. If that is the situation it must be pleaded appropriately. The balance of the particulars, B(4)-(8), seem to be doing no more than reasserting the vicarious liability claim on the basis of either servant or agent of McCabes.

20 As I have said, in the circumstances, the purported particularisation of a Webb v Bloch kind of case does not cure the absence any relevant allegation thereof in the pleading, and those particulars under “B” are struck out.

21 I am otherwise persuaded that an order in accordance with paragraph 2 of the notice of motion be made, and accordingly I order that:

1. Pursuant to SCR Pt 31 r 2 questions as to whether the matter complained of was published by the sixth defendant and, if it was, whether it carries any imputation defamatory of the plaintiff, be tried by jury before and separately from any other question in the proceedings.

2. The plaintiff is to pay the first, second, third and fourth defendants’ costs of the motion.

3. Particulars B1-8 in the plaintiff’s solicitor’s letter dated 5 August 2003 (Annexure A to affidavit of M G Coffey sworn 11 December 2003) are struck out.

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Last Modified: 06/21/2004