Queensland Newspapers P/L v McCarthy

[2000] QCA 325

[2000] QCA 325

COURT OF APPEAL

PINCUS JA

QUEENSLAND NEWSPAPERS PTY LTD
and
CHRISTINE JACKMAN  Applicants

and

E AND G McCARTHY  Respondents

BRISBANE

..DATE 09/08/2000

JUDGMENT

PINCUS JA: Both the plaintiffs and the defendants in this defamation suit are dissatisfied with orders made by his Honour Judge McLauchlan QC in the District Court and each applies for leave to appeal under section 118 of the District Court Act 1967, leave being necessary because the orders which his Honour Judge McLauchlan made were not final.

The case concerns a claim for defamation in respect of an article published in a newspaper alleging misconduct on the part of an unnamed young person and also mentioning his father, without naming him.  The plaintiffs' pleading says, in effect, that it will be sought to establish that the extrinsic circumstances sufficiently show the plaintiffs, who are Gregor James McCarthy and Elliott Rylance McCarthy, to be the persons spoken of in the article, the first plaintiff being the father and the second plaintiff the young person.  Among the circumstances relied on to prove the identification are that, as to the second plaintiff, he attended an end-of-school party at a certain place which was attended by various people, alcohol was consumed, and at the party a girl claims she had been raped.

The pleading sets up innuendoes which, so far as concerns the first plaintiff, perhaps need no discussion.  So far as the second plaintiff is concerned, one of the innuendoes is that the second plaintiff, in company with another, raped a young girl and that he had raped before and would rape again.

In the defence, there was initially no plea of justification, but the defendants applied very late to amend their defence to set up a truth and public benefit.  The application was allowed:  I will come to the details of that.  At the same time, the defendants applied to amend their pleading to say that the second plaintiff had a bad reputation.  That was refused, so that Mr Mulholland QC, who leads Ms Spence for the defendants before me today, complains of the refusal to add a plea of bad reputation and Mr Perry of counsel, for the plaintiffs, complains of the learned primary Judge having allowed a plea of truth and public benefit to be added.

In his Honour's reasons, delivered after a lengthy hearing, the Judge explains that the application to introduce the defence of justification was made on the day of trial, and was notified to the plaintiffs only a matter of days earlier.  The Judge then discusses the evidence which relates to the delay and which has not really been canvassed before me at any length, and his Honour concludes as follows:

"It is submitted that the defendants were at fault in not making greater efforts at an earlier time to obtain the material upon which to base their application, that is the application to plead truth and public benefit.  But these are obviously matters of great delicacy as far as the girls involved were concerned.  It could well be that a more concerted or sustained approach on the part of the defence would have been counterproductive.  Looking at the matter as a whole, I cannot find in the circumstances that the defendants were at fault as contended."

His Honour then goes on to deal with the allegation of general bad reputation and briefly explains that it should not be allowed and deals with what might be described as matters of convenience which were debated before him.

The position in which both sides find themselves before this Court is that explained by the High Court in the case of Adam P Brown Male Fashions Pty Ltd v. Phillip Morris Incorporated which is in (1981) 148 C.L.R. 170 at 177.

After explaining that the order which was there attacked was an interlocutory order for an injunction and that that was a matter of practice and procedure, their Honours went on:

"Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.  Counsel for Brown urged that specific cumulative bars operate to guide appellate Courts in the discharge of that task.  Not only must there be an error or principle but the decision appealed from must work a substantial injustice to one of the parties."

Their Honours then go on to say that it would be unwise to lay down rigid and exhaustive criteria, and approve the familiar statement in In Re the Will of F.B. Gilbert (1946) S.R.(N.S.W.) 318 at 323.

The circumstances which led the Judge to the conclusions which he reached are in two categories.  Firstly there were determinations, at least implicitly, on questions of law and secondly, there were matters of a discretionary character dealing with delay and things of that sort.

The best hope that either side has, it seems to me, of obtaining leave to appeal from decisions which are prima facie appeal-free, that is, decisions relating to amendment of pleadings, is by showing firstly that there is a question of law which needs to be determined, and secondly, that it is necessary to determine it in advance of the trial.

As to the second point, defamation suits can be a terrible burden, particularly on plaintiffs, and it is in my view in the highest degree undesirable that the complication be aggravated by interlocutory appeals, unless such appeals are clearly necessary, as they may sometimes be.

The simpler point of the two, it seems to me, is the application made by the defendants for leave to appeal in respect of the failure to allow a plea of general bad reputation.  The argument which was advanced by
Mr Mulholland in support of that was, in part, that there are questions of law involved.  The argument which appears to me most potent in favour of granting leave to appeal is that it is common ground between experienced counsel who appear before me that there is a point of law which is connected with, but not necessarily involved in, the decision of the learned primary Judge.

Under the Uniform Civil Procedure Rules, as under the previous rules, it is necessary to give details with respect to matters pleaded, and that this is so can be seen from rule 149, which requires that a statement of all the material facts upon which a party relies must be included in the pleading. There is some authority for the view that a rule in that form requires that a person in the position of the defendants here plead general bad reputation, if that is intended to be relied on. As against that there is the difficulty that, at least in my view, on the existing pleadings the plaintiffs would be quite entitled to call evidence of good reputation as at least going to augmentation of damages. It would seem unfair if that could not be countered.

I was at one stage, for that reason, of the view that it would be convenient if leave to appeal were given on the defendants' application with a view to clarifying that point, i.e. the necessity, or otherwise, of the plea.  But giving leave to appeal and hearing the appeal will not necessarily clarify the point because if the appeal were allowed and Mr Mulholland's side were permitted to plead bad general reputation, then the question of what could have been done in the absence of such a plea need not be resolved.  Similarly, if the appeal is dismissed on the ground that the Judge properly exercised his discretion, again the question of admissibility of evidence of bad reputation in the absence of the plea would not be resolved.

It therefore seems to me that the circumstance I have mentioned, namely, that it is awkward that there is no clear authority on what evidence can be called in the absence of the plea, is not sufficient to override the general rule which is stated in the High Court authority to which I have referred, namely, that you must show an error of principle or some substantial injustice to one side.  It is, in a sense, regrettable that the case will, if it goes to trial, go with this point uncertain, but it does not appear to me that that is sufficient ground to grant Mr Mulholland's application.  Mr Mulholland also urges, and there is some substance in this, that the evidence before the primary Judge against the exercise of a favourable discretion with respect to this matter was scanty indeed and that the Judge did not give any particularly detailed reasons for exercising his discretion against the defendants on the general reputation point.

On the other hand, it is not a terrible burden, if people want to rely upon general reputation, for them to plead it early.  They do not, it seemed to me, have to do a great deal of investigation to warrant such a plea, and the case was begun on - what is the date of the initial pleading, Mr‑‑‑‑‑

MR PERRY:  October '97 - 15 October.

PINCUS JA:  The case was begun nearly three years go.  Therefore, although I am of the view that there is substance in the defendants' application for leave to appeal in respect of the refusal to allow a plea of general reputation, on the whole I do not think the Court's discretion should be exercised in favour of allowing an appeal on that ground.

The more difficult problem is the one raised by Mr Perry's application - more difficult in the sense of more
complex - and that is whether or not the plea of truth and public benefit should have been allowed.

The learned primary Judge pointed out that the amendments proposed, and which he allowed, were to plead justifications in respect of imputations pleaded in paragraph 11(b), 11(f), 11(h) and (i).  The essence of the complaint which is made by Mr Perry on behalf of the defendants is that the case, as now pleaded, will involve the second plaintiff in defending himself against accusations of a very serious character - in one case of a rape and the other case of some other sort of penetration, unspecified in nature.

The argument which Mr Perry advanced focused principally on this point.  Mr Perry contended that, on the particulars given in paragraph 5A(3), the matters which were said to be of legitimate interest and concern to the public, which were there set out, were not specifically tied to the allegations made in the earlier part of the amendment, namely one of rape and one of penetration of the vagina without consent.
It is unnecessary to read the particulars in detail to show that Mr Perry's submission is correct.  The pleading does not, in its present form, state specifically any way in which the allegations of rape and penetration are tied to the matters which are said to be of concern to the public, which are such questions as the sexual mores of teenagers, the impact of teenage sexual conduct upon others, the societal problem that victims of rape will not be treated sympathetically and matters concerning the behaviour of boys at exclusive schools.

Mr Perry's submissions have substance but it does not appear to me that the Court of Appeal should exercise the role of being, so to speak, a censor and monitor of pleadings, either in the District Court or in the Trial Division of this Court.  If it is the fact that, as Mr Perry contends, 5A(3) does not make perfectly clear the way in which the question of public benefit is raised, in a general sense it is clear enough.  That is, it is said that these matters are questions upon which information about and discussion of the questions involved can benefit the public. 

But Mr Perry's argument is that, even though that may be so, the defendants cannot succeed on this point, unless they pass a test which was laid down in a number of authorities to which he referred me; he said they show that the plea of public benefit cannot succeed, in respect of an allegation of misconduct against a public figure, unless it has some bearing upon the capacity of that public figure to perform his public activities.

I refer in particular, in that connection, to a case which Mr Perry gave me, Chappell v. TNC Channel Nine Pty Limited (1988) 14 N.S.W.L.R. 153 at 165. It is, in my opinion, plainly arguable that the general statement at letter G of that page cannot be an exhaustive definition of the circumstances in which private misconduct can be disclosed for the public benefit. I gave during argument an example of a case in which quite obscure persons are guilty of misconduct which is by the newspaper to illustrate a wider problem on which the public needs to be informed.

I do not say that there is any general rule that such private misconduct by persons of no public reputation must always be allowed to be proved, if it is a question upon which the public may legitimately have a concern. I do say that it seems to me arguable that the circumstances of the present case raise a question of public benefit which makes the allegations, which are made in the amended pleading, proper ones. In saying this I particularly have in mind what was said by Dawson, McHugh and Gummow JJ. in Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183 at 229 and especially to the references there to the question being essentially a "value judgment". The discussion there had to do with section 377(8) of the Code and is relevant here.

More generally, it seems to me that if the case for the appellants here for leave to appeal depends, as I think it does, upon the proposition that the circumstances (if I may say so) rather inelegantly outlined in 5A of the pleading cannot, as a matter of law, raise a question of public benefit, then it appears to me that the application would have to fail, because it is not in general the case that on applications for amendment the court treats the matter as one of demurrer, that is where one assumes the truth of the facts stated and asks:  does this raise a good cause of action or defence?  The general practice, and I think the right practice, of the courts is to allow pleadings of factual questions to be raised if the legal propositions on which they depend are arguable.

It appears to me impossible to say that the facts and circumstances (assuming them to be correct) in the defence cannot possibly be held as a matter of value judgment by the jury, to show potential public benefit.  If that is not right, it seems to me impossible to say that this is one of those unusual cases in which an application for an amendment is treated as if it were an application for determination, however inconveniently, of a question of law in advance of the decision of the facts.

In summary then, my view of the matter is although both applications for leave, that is the application made by the defendants and that made by the plaintiffs, are arguable, they should both fail - in summary, as to the defendants' application, because of the general rule that the Court does not interfere in matters of this sort and because the only significant legal question which seems to be involved is not one which will necessarily be decided by an appeal.  As to the other side's application, it fails principally because of the general rule which I mentioned and the circumstance that the question of law which Mr Perry argued has not got such a clear answer as to warrant the unusual course of treating an application for an amendment as a demurrer to the proposed amendment.

It should be added that the application made by the defendants seeks, in addition to the challenge I mentioned to the refusal, to add a plea to raise a question of leave to read and file an application of Mr D P Spence.  It seems clear enough to me, having looked at the relevant part of the transcript, that that is not a matter in which leave to appeal should be granted.

The orders that I make, therefore, in respect of both applications are that they be dismissed.  Subject to anything counsel may have to say, I do not propose to make an order for costs because I would have thought the costs would balance.  Anything to the contrary to be said about that?

MR MULHOLLAND:  No, your Honour.

MR PERRY:  No, your Honour.

PINCAS J:  Yes, therefore, the applications will be dismissed without costs.  The Court will now adjourn.

-----