S, DJ v Channel Seven Adelaide Pty Ltd

[2008] SASC 229

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD

[2008] SASC 229

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Vanstone)

19 August 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal in private.  Permission to appeal refused.

Criminal Law (Forensic Procedures) Act 1998 (SA); Telecommunications (Interception and Access) Act 1979 (Cth), s 63; Supreme Court Rules 2006 r 282(2), referred to.
S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60; Channel Seven Pty Ltd v S, DJ (2007) 248 LSJS 75; S, DJ v Channel Seven Adelaide Pty Ltd & Anor [2008] SASC 108, discussed.

S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 229

Full Court:      Duggan, Nyland and Vanstone JJ

1. THE COURT:      The plaintiff seeks permission to appeal against orders of a judge of this court made on 16 May 2008, allowing the first defendant (Channel 7) to amend its defence in terms of a document entitled “Third Further Amended Defence”.

2. The plaintiff’s claim is for damages for defamation.  The circumstances of the alleged defamation and the history of this litigation are summarised in the most recent Full Court decision in the matter:  S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60.

3. The action arises out of a television broadcast by Channel 7 on 14 and 15 May 2004, being a promotion for a Today Tonight programme then scheduled to go to air the following week.  The promotion was in the following terms:

   On Today Tonight South Australian federal MP, her boyfriend and the business trip – disgusted that taxpayer funds have been used – the paper trail and the whistleblower – he is a suspect in a murder case.

4. The promotion was accompanied by pictures of a member of the House of Representatives, Ms Draper, the plaintiff and of Ms Corinna Marr, a young woman who was, in July 1997, the victim of an unsolved murder.

5. Paragraph 7 of the Statement of Claim reads:

   7.     The natural and ordinary meaning of the promotion is:

   (a)     the plaintiff is a suspect in a murder case arising from the death of Corinna Marr, and

   (b)     there are grounds to so suspect him, which are reasonable.

6. In its defence Channel 7 included a plea of justification.  In support of it, the defendant pleaded a number of assertions about police activities in the course of the investigation of the murder, including statements taken and interviews conducted and as to suspicions held by police;  and further, as to a ruling made in the Adelaide Magistrates Court in the course of an application under the Criminal Law (Forensic Procedures) Act 1998 to the effect that the plaintiff was reasonably suspected of involvement in the murder.  The particulars of that plea were struck out by a Master, and the Master’s decision was, to that extent, confirmed on appeal to the Full Court:  Channel Seven Pty Ltd v S, DJ (2007) 248 LSJS 75. In the reasons for the Full Court decision, Perry J, with whom Duggan and David JJ agreed, said (at [41]):

   It seems to me right in principle that the defence of justification should proceed on an objective view of the facts which are offered in support of the plea, and if the plea is in response to an accusation that a person is under suspicion, what has been held to be the necessary implication that the plaintiff has been guilty of conduct giving rise to the suspicion can only properly be proved by objective evidence of conduct on the part of the plaintiff, rather than by evidence of what others might have said or observed.

7. Subsequently, Channel 7 applied to amend its defence to include a modified plea of justification, apparently designed to overcome the deficiencies identified by Perry J.  Leave to amend was granted by a Master.  However, the matter again went to the Full Court and again the pleading was struck out.  The same principles as discussed by Perry J arose.  Again the basis was that the facts pleaded failed to justify the reasonableness of the grounds for the suggested suspicion.

8. Channel 7 then filed the application to amend its defence, which is now under consideration, in the form of a document entitled “Third Further Amended Defence” (TFAD).  That application was heard by White J.

9. The proposed new plea focussed on alleged facts and conduct, rather than suspicions held as to facts and conduct.  Its nature was summarised in this paragraph from his Honour’s reasons:

   47.In my opinion, it is reasonably arguable that the circumstances pleaded by Channel Seven comprising (at a level of generality) an intimate relationship between Ms Marr and the plaintiff, contact between them on the day of her murder, the possibility of a motive, the existence of an opportunity, and untruths by the plaintiff about the nature of their relationship and his whereabouts at relevant times are capable of supporting the plea of justification.

10. On 24 April 2008 his Honour published written reasons for finding that Channel 7 should have leave to amend in terms of the TFAD:  S, DJ v Channel Seven Adelaide Pty Ltd & Anor [2008] SASC 108. However, that grant of permission was subject to Channel 7 providing “appropriate particulars of the proposed paragraph 7.2.1.2.6. At the time of the argument before White J that paragraph was in this form:

    7.2.1.2.6The plaintiff did not have any involvement in taking the photographs for the advertisement referred to in paragraph 7.2.1.2.1.4 above.

11. The matter came before White J again on 30 April 2008.  Channel 7 then indicated that it proposed providing the required particulars of paragraph 7.2.1.2.6 by an amendment to paragraph 7.2.1.2.1.4 of the amended defence, a draft of which it provided.

12. However, on 16 May 2008 when the matter was again before his Honour, Senior Counsel for Channel 7 advised the court that Channel 7 no longer sought that amendment but instead sought to insert an additional particular, to be numbered 7.2.1.2.1A and to read:

    7.2.1.2.1AOn or about 24 January 2004 the plaintiff said to the police that on the afternoon of Corinna Marr’s death he was taking photographs for an advertisement for All-Vac vacuum cleaners for Messenger Press (which said advertisement subsequently appeared on p.84 of the 9 June 1997 edition of the News Review Messenger).

13. The only difference between 7.2.1.2.1A and the previously foreshadowed 7.2.1.2.1.4 was the date in the first phrase.  It was “August 1997” and became “on or about 24 January 2004”.

14. Counsel also applied to amend 7.2.1.2.6 so that it referred to the new particular.  White J described the effect of the proposed amendment as being

    … that instead of Channel Seven alleging that the plaintiff gave a false alibi when interviewed by the police in August 1997, he did so when spoken to by police on 24 January 2004.

15. The plaintiff opposed the grant of permission to include 7.2.1.2.1A.  The plaintiff advanced a new argument in opposition to that particular, being that it made use of “lawfully intercepted information” as that expression is defined in the Telecommunications (Interception and Access) Act 1979 (Cth). Section 63 of that Act prohibits the use of such information except in certain circumstances not here applicable.

16. (We pause to say that in the summary of argument filed in support of this application, the new contention became “the particulars given in paragraphs 7.2.1.2.1A and 7.2.1.2.6 together ‘make use of lawfully intercepted information …’”  Although that contention might seem to be more plausible, it tends to obscure the plaintiff’s position as to what information is said to be the product of an interception.  In any event we do not consider that the difference is significant for present purposes.)

17. White J considered the arguments of the parties.  He was not satisfied that the proposed particular involved the use of lawfully intercepted information.  He made it clear that such an issue might be argued by the plaintiff at trial.  Therefore, incorporation of the further particular was allowed.

18. On 26 May 2008 White J dealt with an application for permission to appeal.  Having reviewed his written reasons, his Honour did not find it appropriate to grant permission to appeal.  He observed that there had already been three appeals to the Full Court involving interlocutory decisions in the matter.  He expressed the view that the present issues did not warrant consideration by the Full Court.  Accordingly, pursuant to Rule 282(2) the matter was referred for determination to this court.

19. The members of the Full Court have had available to them the Notice of Appeal, the affidavit of Christopher Steward Edgar Swan, solicitor for the plaintiff, together with annexures which include the various versions of the defence in this matter, the transcript of proceedings before White J on 16 May 2008, settled reasons provided by White J of 20 May and 26 May 2008 and the appellant’s summary of argument.

20. There are essentially three grounds of appeal.  What are numbered as grounds of appeal 2 and 4 are in fact an amplification of the immediately preceding ground.  We shall set out only the grounds themselves:

    1.That the learned Judge erred in finding that it was reasonably arguable that the particulars of justification and are capable of supporting the First Defendant’s plea of justification and in thereby granting leave to file a Third Further Amended Defence setting forth such a defence.

    …

    3.In the alternative, the learned Judge erred in refusing to order that the Defendant’s application for leave to amend be adjourned and that the First Defendant provide written statements in relation to the particulars pleaded in paragraph 7.2.1 or alternatively paragraphs 7.2.1.2.1A and 7.2.1.2.6 of the defence such that the Court could be properly satisfied that the Court’s processes were not being abused.

    …

    5.That the learned Judge erred in finding that the Plaintiff was entitled to only 60% of his costs when the Plaintiff had successfully secured the obligation of the First Defendant to further particularise its advanced amended pleading and having regard to Rule 263(2)(a).

21. The first ground of appeal attacks the judge’s finding – made in his reasons of 24 April – that the judge erred in finding that the new particulars in support of the plea of justification are capable of supporting that plea.

22. The plaintiff argues that the amendments have the effect of reversing the onus of proof, and, in any event, even if proved, are not capable of supporting the plea.  That latter goes simply to a question of evaluation of evidence.  That is very much a matter of judgment.  Since the matter is to proceed to trial we do not think it is appropriate to say too much about the second contention.  We have considered the arguments in support of the proposed ground of appeal against the background of White J’s decision.  We do not consider that either of them is reasonably arguable.

23. Turning to ground 3, we do not propose to rehearse the arguments considered by White J.  Essentially they amounted to a suggestion that an inference should be drawn from the chronology of amendments to pleadings and from the knowledge that interceptions did take place, as to the source of the information underpinning the pleadings.  There was no material bearing directly on that source, although the plaintiff suggested it should be produced by the defendant.  In our view, absent clear evidence that the pleading was based on unauthorised use of intercepted information,  the matter should be left to the trial judge to determine.  There is no such clear evidence.  There is no warrant to require the defendant to produce evidentiary material.

24. The fifth ground raises a matter of costs.  The plaintiff complains of an award of only 60 per cent of his costs in relation to these amendments.  As with the other grounds discussed, we do not consider this one is fit for consideration by the Full Court.  As set out earlier, this action has already been to the Full Court on three occasions on arguments related to pleadings.  No doubt there is some fault on either side for the way the action has been allowed to become protracted and, no doubt, expensive for the parties.  There is no reason to disturb the apportionment of costs determined upon by White J.

25. Permission to appeal is refused.