Schrader v Australian Broadcasting Corporation

[2007] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

SCHRADER v AUSTRALIAN BROADCASTING CORPORATION

[2007] SASC 270

Reasons of Judge Lunn a Master of the Supreme Court

23 July 2007

PROCEDURE

Permission to amend - R 54 of 2006 Rules - insufficient particularity in proposed new pleading - substantial prejudice under R 102(3) - pleading of special defences in defamation - permission to amend refused.

SCHRADER v AUSTRALIAN BROADCASTING CORPORATION
[2007] SASC 270

Reasons on defendant’s application for permission to file a second further amended defence.

1. JUDGE LUNN:     The plaintiff sues the defendant for defamation arising out of publications by it on 23 August 2006 relating to the management of the Aboriginal College at Yulara.  On 4 May 2007 another Master struck out paragraphs 9-13 of the defence.  By an application taken out on 1 June 2007 the defendant seeks leave to file a second further amended defence in the form exhibited to the affidavit of its solicitor, also filed on that day. 

2. A major, although not the only, complaint of the plaintiff about the proposed new defence is based on a lack of particularity contained in it.  I do not accept the defendant’s contention that any complaint about lack of particularity should be left for a separate application under R 102(1) after the pleading has been filed.  However, I also do not accept the plaintiff’s contention that permission for the amendment should not be granted unless all proper particulars are pleaded.  I consider that under RR 54 and 102 of the Supreme Court Civil Rule 2006 as a general rule permission should not be granted to file an amended pleading if the Court would order further particulars of that pleading under R 102(3).  This is consistent with R 102(5) which provides:

   No pleading is defective for want of particularity unless the missing particulars would be ordered under this rule.

   If the pleading is otherwise defective for want of particularity it is a matter for the trial Judge under R 103.

3. R 102(3) provides:

   (3)The Court will only make an order for further particulars if satisfied that –

   (a)the pleadings do not give fair notice of the party’s case; and

   (b)the order is necessary to avoid substantial prejudice to the party in whose favour the order is to be made.

   This is similar in its effect to parts of R 46A.09(1) of the repealed 1987 Rules. The authorities on R 46A.09(1) are generally applicable to R 102(3). (R 46A.09(1) referred to the parties seeking the particulars being “significantly prejudiced” whereas R 102(3)(b) refers to “substantial prejudice”: if there is any difference between these expressions it is of no consequence in the circumstances of this matter). The plaintiff has not adduced any extrinsic evidence of prejudice from the lack of particularity and thus any finding of substantial prejudice can only flow from any inference which the Court is prepared to draw from the terms of the proposed new defence and undisputed facts: H Stanke & Sons Pty Ltd v O’Meara, Full Court 4 July 2007 [2007] SASC 246 at [92} (“Stanke’s case”).

   Want of particularity.

4. I am prepared to draw the inference that the plaintiff would be substantially prejudiced under subr 102(3)(b) if he did not have further particulars on the following matters:

   AVarious pleas, including the new proposed 9.1.10A, about the effective control exercised or exercisable by the plaintiff over the affairs of the WU Group.  It was undisputed that the events in question occurred in relation to a number of interrelated entities known as the WU Group in some of which the plaintiff held no office or employment, but over which it is alleged he exercised control.  In the broadcast complained of a number of potential witnesses for the defendant made bald allegations of control by the plaintiff of various entities and events, but it is unlikely that those persons, if called as witnesses by the defendant, would be permitted to give evidence in those terms without also giving evidence of the basis upon which they reached such conclusions.  In the proposed new subparagraph 9.1.10A it is stated that control of the plaintiff was “by reason of the matters pleaded in subparagraphs 9.1.1 to 9.1.10”.  Those subparagraphs in themselves do not provide an adequate basis for the plea of control in relation to the specific times, entities and events where such control is a necessary element for the special defences sought to be raised by the defendant.  Insofar as the defendant will seek to rely upon other events not already pleaded to establish the conclusion of control by the plaintiff the plaintiff is entitled to further particulars of those events if he is not to be substantially prejudiced in his preparation for trial.  (see [91] of Stanke’s case).

   BThe particulars which have been given for various special defences make almost no reference to the timeframe in which the events and circumstances pleaded occurred, other than elliptical references to “at all relevant times”.  The imputations which are the subject of the special defences, and the subject matter of the special defences, extend over a number of years.  There is undisputed evidence that the roles of the plaintiff in various entities within the WU Group changed at various times during the years in question.  The plaintiff will be substantially prejudiced in his preparations for the trial if the timeframes in question are not better particularised.

5. These conclusions about some of the lack of particularity complained of are sufficient to justify refusing permission to file the whole of the proposed new defence.  As I stated in Coonawarra Premium Vineyards Ltd v Nugan Group Ltd, 18 January 2006 [2006] SASC 5:

   I do not consider that R 46A.09(1) requires the Court to tell the party in default what further material facts it needs to plead, except perhaps in a very general fashion. Although it was sometimes the practice under the old rules for the Court to order a party to give particulars as if it was administering interrogatories, the thrust of R 46A is to require a party to plead properly, and, if it does not do so, to take the consequences of that at trial. An order under R 46A.09(1) will give the party the opportunity to plead further material facts, but ultimately it will be for the trial Judge to determine whether the facts pleaded entitled that party to adduce evidence at the trial where it is objected to by other parties.

   Here the adequacy of any further particularisation of the defence will be considered if and when the defendant applies for permission to file a revised defence.  The defendant should consider the other grounds of complaint raised by the plaintiff about lack of particularity.  Even if such lack of particularity does not result in substantial prejudice to the plaintiff, the fact that the issue has been squarely raised in this application may well be taken into account by a trial Judge under R 103 in the exercise of his or her discretion as to what material the defendant should be permitted to place before the Court at the trial on the special defences which are the subject of any further amended defence which is filed.

6. As to the various other challenges to the proposed defence have been argued I express my conclusions about them below for the assistance of the parties.

   Reversal of onus of proof.

7. In correspondence, and in the written outline of argument, the plaintiff submitted that various pleas in justification and fair comment impermissibly reversed the onus of proof.  I do not agree.  I refer to what I said on the point in S, DJ v Channel 7 Adelaide Pty Ltd (No 3), 14 June 2007 at [12-13]. 

   Breach of the repetition rule.

8. I refer to what I said about this rule in S, DJ v Channel 7 above at [11].  Paragraphs 9.2.10.3, 10.6.2 and 10.6.7 plead matters which are arguably admissible on justification and fair comment on relevant topics which do not breach the repetition rule.

   Factual material upon which defences of fair comment and honest opinion are based.

9. The plaintiff objects that the particulars given of this material do not include much of the publication complained of and extend to matters which were not stated in the publication.  There is a divergence of judicial authority on the point.  Based on what was said by McHugh J in Pravan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 336-340 and by Gray and Layton JJ in the recent Full Court decision of Manock v Channel 7 Adelaide Pty Ltd (2006) 246 LSJS 123, I am satisfied there is at least an arguable case for the defendant to plead in the way it now seeks. It is not for a Master at an interlocutory level to attempt to resolve the divergence of authority. This should be left for the trial Judge unless there is an application for the determination of a preliminary issue.

   Defence of contextual truth under s 24 of the Defamation Act 2005.

10. The plaintiff complains that no reasonable basis for this defence is made out on the pleas in paragraphs 11-13 of the proposed new defence.  It is a new type of defence introduced by the Act in 2006.  As yet there is no reported authority upon it.  I consider that the matters proposed to be pleaded by the defendant constitute reasonably arguable grounds of such a defence and the issue raised about it should be left to be dealt with by the trial Judge.

    Qualified privilege.

11. In paragraph 14 of the proposed defence the defendant seeks to plead a “Lange” type defence of qualified privilege concerning political or Government matters.  In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574 the High Court said that an element of the offence was that the publisher had to prove the reasonableness of its conduct. The High Court said at 574:

    Whether the making of a publication was reasonable must depend upon all circumstances of the case.  But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue.

    The plaintiff objects to Particular 14.11 which says:

    The defendant did not believe and had no reason for believing the matters contained in the publication to be untrue.

    He says the plea should be struck out as 14.11 does not conform to the test laid down by the High Court in the passage quoted.  However, the High Court prefaced its statement about the defendant having reasonable grounds by the words “as a general rule”.  It did not preclude reasonableness being established in other ways.  I consider that the particulars proposed are sufficient for an arguable defence of such qualified privilege.

    Retraction.

12. Paragraph 15 of the proposed defence pleads the publication of a retraction by the defendant “that the plaintiff (obtained) an improper personal benefit from his involvement with the Nyangatjatjara Incorporation and College.  Lateline did not intend to make this claim and withdraws it unreservedly”.  The plaintiff contends that this plea is inconsistent with the proposed pleas of justification, and therefore contrary to R 98(6).  Paragraph 15 does not retract any other imputation against the plaintiff.  Paragraph 8 of the statement of claim does not plea an imputation that the plaintiff obtained “an improper personal benefit”.  It does plead an imputation that the plaintiff was enriching himself, but I accept the defendant’s argument that there is not any necessary inconsistency between enrichment and the absence of any improper personal benefit.  Paragraph 15 is not an embarrassing pleading.

    I have today made the following orders:

    1Permission for the defendant to file a second further amended defence as exhibited to the affidavit of Peter Campbell filed on 1 June 2007 is refused.

    2Costs reserved.

    3Adjourned to a Directions Hearing on 16 August 2007 at 11.30 am.