Saunders v Beckwith - [2019] SADC 109

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
SAUNDERS v BECKWITH & ORS
[2019] SADC 109
Judgment of His Honour Judge Dart
22 August 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM DISTRICT COURT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - PARTICULAR PLEADINGS - DEFENCE
Defamation - pleas of justification - whether conduct rule applicable - fair comment - plaintiff seeks to strike out parts of Defence - Master declined to do so - no error in the Master's approach.
Held: Appeal dismissed.
Supreme Court Civil Rules 2006 (SA) r 104, r 117(2), referred to.
Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; Manock v Advertiser News-Weekend Publishing Co Ltd [2004] SASC 164; Sands v State of South Australia (2015) 122 SASR 195, considered.

SAUNDERS v BECKWITH & ORS
[2019] SADC 109
JUDGE DART:

This is an appeal from a Master who declined to strike out portions of two defences. One of the defences was that filed by the first defendant, the other by the fourth defendant.
The claim is one of defamation. As such, to some extent, the pleadings carry more significance than in other civil litigation. I am not convinced that the Master erred in dismissing the applications of the plaintiff. The appeal should be dismissed.
Pleadings-related issues in defamation matters
A defamation pleading dispute involves the normal rules of court in respect of pleadings, together with some pleadings issues unique to defamation. The first thing to note is that a pleading should not be struck out unless the provisions of Rule 104 are satisfied:
104—Court's power to strike out pleading
The Court may strike out a pleading in whole or part if the pleading—
(a)does not comply with these rules; and
(b)is an abuse of the process of the Court or prejudices the proper conduct of the action.
The rule provides the Court with power to strike out a pleading where two matters are established. First, there must be a failure to comply with the rules and, secondly, the failure must be such as to either be an abuse of process or prejudice the proper conduct of an action. There is also the provision in rule 117(2) which allows the Court to strike out a document if it is frivolous, vexatious or an abuse of process of the Court. That rule does not properly arise and it is rule 104 that is the relevant source of the power the plaintiff says the Court should exercise.
As with any pleadings dispute, there is a reluctance to strike out a defence unless it is clearly without merit. In Gallagher v Destiny Publications Pty Ltd (No 2)[1] Kenneth Martin J was dealing with an application to strike out pleadings in a defamation matter. His Honour said:[2]
It is trite to observe that this is a pleadings strikeout application and, in that context, I am only concerned with assessing the reasonable arguability of the defences which have been pleaded by or on behalf of the second defendant. I am certainly not determining the substantive merits of such defences.
To summarily strike out the second defendant's pleaded defences, because they fail to disclose any reasonably arguable defence, an applicant plaintiff must first discharge a high threshold.
[1] [2015] WASC 475.
[2] Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 at [29]-[30].
Similar sentiments were expressed by McColl JA in John Fairfax Publications Pty Ltd v Hitchcock.[3]Her Honour said, in the principal judgment in that matter, that:[4]
These observations echo Starke J’s statement in Howden v Truth and Sportsman Ltd [1937] HCA 73; (1937) 58 CLR 416 (at 418) that the jurisdiction to strike out a defence in a defamation case “should be exercised with great care and a plea should not be struck out unless it is perfectly clear that it cannot succeed - that it ‘has not a solid basis capable of proof’...” and Evatt J’s statement (at 424) that “[w]here the defendant in a libel action pleads truth and public benefit the defence cannot be struck out unless the case presents exceptional features”.
[3] (2007) 70 NSWLR 484.
[4] John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [112].
One issue that arises on this appeal is the extent to which a defendant, in a plea of justification, can plead matters that are different to the plaintiff’s pleaded imputations. In Manock v Advertiser News-Weekend Publishing Co Ltd[5] Besanko J was considering that issue. His Honour said:[6]
At this stage, when I am asked to consider whether pleadings comply with the rules as to pleadings, I think the correct principle is that the plaintiff can rely on the meanings he has pleaded and meanings which are less injurious and not of a substantially different kind. The plaintiff may rely on unpleaded meanings which are simply a variant of the meanings pleaded, or involve no more than a different nuance or shade of meaning.
…
Having regard to the decision in Chakravarti, the decisions in this Court in Prichard, Jakudo, Brander, the common law principles of pleadings and the considerations referred to by Miles CJ, I think the principle I should apply is that the defendant may only plead and seek to justify such alternative meanings as may be relied on by the plaintiff to obtain a judgment even though he has not pleaded them. A plaintiff may rely on unpleaded meanings which are less injurious or represent merely a variant or a different nuance from the meanings pleaded. The plaintiff may not rely on unpleaded meanings which are substantially different. Support for this approach is to be found in the decision of the Victorian Court of Appeal in David Syme & Co Ltd and Anor v Hore-Lacy (2000) 1 VR 667 (“David Syme”) and in the decision of the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Moodie [2003] WASCA 273 (see also the article by Mr AJH Morris QC “Polly Peck Defence: Its Future in Australia” (2000) 74 Australian Law Journal 760).
[5] [2004] SASC 164.
[6] Manock v Advertiser News-Weekend Publishing Co Ltd [2004] SASC 164 at [48] and [54].
The plaintiff asserts that some of the matters pleaded are impermissible alternate meanings. The defendants say the matters pleaded are nuance only.
One of the grounds of appeal is that the Master failed to have proper regard to the conduct rule. That is a matter unique to defamation pleadings. It is necessary to consider whether it has any role to play in this appeal. In Sands v State of South Australia the Full Court in its judgment said as follows: [7]
The so-called “conduct rule” is not a rule of law but is analogous to a canon or maxim of interpretation or principle of construction of words in the context of the meaning that would be attributed to them by an ordinary reasonable listener or reader. When it is said that a person is suspected of having committed a crime, often it is implied that the person’s conduct has given rise to the suspicion. Whether that implication arises in a particular case will depend on the words used and the context. When the implication does arise, a defendant will not establish justification by proving no more than extraneous facts and circumstances not involving the person’s conduct.
…
When the conduct implication arises, it does not ordinarily preclude the defendant relying upon evidence of facts and circumstances other than the plaintiff’s conduct to establish a defence of justification, provided evidence of such conduct is the focus of the defence.
[7] (2015) 122 SASR 195 at [243] and [246].
The conduct rule has application where an implication arises from a publication to the effect that a person is suspected of committing a crime. In such a circumstance the defendant must plead facts in respect of the conduct said to give rise to the suspicion.
The defence of the first defendant
I first deal with the complaints about the defence filed by the first defendant. Originally the first and second defendants filed a joint defence. The claim between plaintiff and second defendant has resolved.
In relation to the first defendant’s defence, the issues arise from the response to the matters pleaded by the plaintiff in the Third Statement of Claim (TSOC) in paragraph 28, which is as follows:[8]
28.The natural and ordinary meanings of the first and second defendants’ publications comprising Annexure A, Annexure B, Annexure C and Annexure D (and the emails presently unknown to the plaintiff) are that the plaintiff:
28.1. is guilty of the offence of aggravated assault occasioning harm which he committed with malice and the intention of causing serious harm to his emotionally vulnerable domestic partner, namely the first defendant;
28.2. is a sleazy sexual predator and a cruel malicious bully prone to violence against women and as such poses a serious threat to the safety of all women who come into contact with him, particularly his female dance partners in the Swing Dance community.
[8] Third Statement of Claim, filed 29 January 2018, FDN16.
In paragraph 21 of the Defence it is pleaded, in respect of paragraph 28.1 of the TSOC, that if any of the meanings pleaded are defamatory, the meaning is true in substance and in fact at common law. Particulars are then given. The plaintiff makes no complaint about paragraph 21 of the Defence.
The dispute is in relation to the first defendant’s response to paragraph 28.2 of the TSOC. The first defendant pleads:[9]
22.     In respect of the allegation in paragraph 28.2 of the Claim:
22.1   if any of the meanings pleaded were conveyed and is defamatory (which is denied), the meaning is true in substance and in fact at common law or is substantially true in substance and in fact pursuant to section 23 of the Act.
[9]    Second Defence of the first defendant, filed 13 March 2018, FDN17.
Particulars are then provided in significant detail in paragraphs 22.2 to 22.6 of the Second Defence. Paragraph 22 is a plea of justification.
The plaintiff says that the first defendant’s pleading at 22.5.2, 22.5.3 and 22.6 was misapprehended by the Master. The plaintiff says the paragraphs allow an inference to be drawn about the plaintiff’s alleged predatory sexual misconduct. The pleading is said to be in breach of the conduct rule because the factual matters pleaded do not justify the imputation pleaded in paragraph 28.2 of the TSOC.
The plea in the TSOC paragraph 28 is of actual criminal conduct rather than as suspicion of the same. The Master correctly observed that in such circumstances the conduct rule did not apply. That point is made on appeal by the first defendant. Paragraph 28.2 pleads that the meaning of the publication was that the plaintiff is a bully and a threat to women. It is not clear that the paragraph, unlike 28.1, is referring to a suspicion of criminal conduct. The conduct rule does not apply in respect of paragraph 28.2.
It is necessary to have regard to paragraph 22 in totality. Isolating particular sub-paragraphs leads to the risk that matters are taken out of context. When taken in context, it does not appear that the first defendant has pleaded any alternate imputations. The first defendant is entitled to plead justification to an unpleaded meaning, if that is a nuance and not substantially different to the imputations pleaded by the plaintiff. That is what has occurred here.
It also needs to be borne in mind that the threshold for striking out a defamation pleading is high. The question is whether, if the matters pleaded in paragraph 22 of the Second Defence were accepted at trial, they arguably justify the imputation that the plaintiff is a sexual predator. In my opinion, they do. The pleading should be allowed to stand.
The defence of the fourth defendant
There are two complaints about the defence of the fourth defendant. The first complaint relates to the response to paragraph 39 of the TSOC, which provides as follows:[10]
39.The natural and ordinary meanings of the fourth defendant’s email publications are that:
39.1. the plaintiff had been banned from the fourth defendant’s Swing It dance school because he had committed the offence of rape in that he had engaged or had continued to engage in sexual intercourse with another person who did not consent to engaging in sexual intercourse or who had withdrawn consent to the sexual intercourse and the plaintiff knew, or was recklessly indifferent to, the fact that the other person did not so consent or had so withdrawn consent (as the case may be);
39.2. there were strong grounds to suspect the plaintiff had committed the offence of rape which warranted the fourth defendant banning the plaintiff from the fourth defendant’s Swing It dance school;
39.3. that the plaintiff had so conducted himself as to warrant the suspicion pleaded in paragraph 39.2 above;
39.4. the plaintiff had been banned from the fourth defendant’s Swing It dance school because he is a rapist prone to sexual violence and abuse against women and as such poses a serious threat to the safety of his female dance partners in the Swing Dance community.
[10] Third Statement of Claim, filed 29 January 2018, FDN16.
The complaint of the plaintiff is that the Master erred in finding that paragraph 16 of the Second Defence of the fourth defendant did not have a substantially different meaning from the imputations pleaded in paragraph 39 and that the Master ignored or misapplied the conduct rule. It is also said the response is a rolled-up plea of justification and fair comment.
The plaintiff attacks the fourth defendant’s pleadings based on the proposition that the fourth defendant is making a plea of justification. The fourth defendant pointed out, before the Master, and again before me, that that is not the case. The fourth defendant says that the pleading simply relates to the common law defence of fair comment and the defence found in s 29 of the Defamation Act 2005 in respect of honest opinion. To the extent that the grounds of appeal proceed on the basis that the fourth defendant is running a justification defence, they can be ignored.
The fourth defendant submitted, in respect of paragraph 16, that the plea sought to do three things. First, it does not contain an admission, thereby making clear that the plaintiff’s imputations are in dispute. It then pleads that, if the email publication subject of the claim contained defamatory matter, the natural and ordinary meaning of the email was that the fourth defendant had banned the plaintiff from the dance school because of a report of abuse and rape. It is not a plea of justification. The particulars then go on to support the fact that the communication contained in the email contains a fact and a comment on the fact which was supported by those particulars. The conduct rule does not apply because the fourth defendant is not seeking to justify the imputations. The pleading is adequate and should stand.
The next complaint of the plaintiff relates to the fourth defendant’s response to paragraph 42 of the TSOC. That paragraph is as follows:[11]
42.The natural and ordinary meanings of the fourth defendant’s Facebook publications are that:
42.1. the plaintiff had engaged in serious misconduct warranting his immediate ban from all Swing It classes and events in that he had harassed and abused students in his care or control while teaching at another swing dance school;
42.2. the plaintiff had been banned from the fourth defendant’s Swing It dance school because he is prone to sexually harass and abuse his students and as such poses a serious threat to the safety of his dance partners in the Swing Dance community.
[11] Third Statement of Claim, filed 29 January 2018, FDN16.
The response is found in paragraph 20 of the fourth defendant’s Second Defence. The plaintiff says the Master erred in failing to find that paragraph 20 of the fourth defendant’s Second Defence pleaded a different meaning to the imputations pleaded by him. Paragraph 20 is also said to be a rolled-up plea.
The fourth defendant makes the same point, that paragraph 20 is not a plea of justification; it is simply one of fair comment and honest opinion. The fourth defendant says the language used in paragraph 20 is properly responsive to the plaintiff’s plea and that it is sufficiently similar in nuance to the pleading of the plaintiff. Again, some of the plaintiff’s complaints are premised on the matters in paragraph 20 being relevant to a justification defence. Those complaints fall away in the circumstances where no such defence is pursued.
The pleading in paragraph 20 does not plead impermissible imputations. If the pleaded factual matters are made out at trial, then it is arguable that the fair comment defence would be established. That is all that is required for a pleading to stand. It is usually possible to criticise a pleading, but a pleading need not be perfect. It merely needs to be adequate.
The appeal should be dismissed.