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.

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.
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.
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This is similar in its effect to parts of R 46A.09(1) of the repealed 1987 Rules.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] SASC 270
Decision Date: 23 July 2007

CaseChat Overview and Summary

In the Supreme Court of South Australia, Schrader sued the Australian Broadcasting Corporation for defamation arising from a broadcast concerning the management of the Aboriginal College at Yulara. The defendant sought permission to file a second further amended defence, but the plaintiff objected primarily due to the lack of particularity in the proposed new pleading. The court considered the application under Rules 54 and 102 of the Supreme Court Civil Rules 2006, which provide that permission should not be granted if the court would order further particulars of the pleading. The court found that the plaintiff would be substantially prejudiced if further particulars were not provided, particularly regarding the control exercised by the plaintiff over various entities within the WU Group, and the timeframes in which the events and circumstances pleaded occurred. The court also addressed other objections raised by the plaintiff, such as the reversal of the onus of proof, breach of the repetition rule, and the factual material upon which defences of fair comment and honest opinion were based. Ultimately, the court refused permission to file the proposed new defence and reserved costs. The matter was adjourned to a Directions Hearing on 16 August 2007 at 11:30 am.

The court considered the legal issues involved in the defendant's application for permission to file a second further amended defence in the defamation case. The main issue was whether the court should grant permission for the amendment despite the lack of particularity in the proposed pleading. The court found that the plaintiff would be substantially prejudiced without further particulars, particularly concerning the control exercised by the plaintiff over various entities within the WU Group and the timeframes in which the events and circumstances pleaded occurred. The court also addressed other objections raised by the plaintiff, such as the reversal of the onus of proof, breach of the repetition rule, and the factual material upon which defences of fair comment and honest opinion were based. The court found that the defendant's proposed new defence constituted reasonably arguable grounds for these defences, and the issues should be left to be dealt with by the trial judge.

In the case of Schrader v Australian Broadcasting Corporation, the Supreme Court of South Australia refused permission for the defendant to file a second further amended defence in the defamation case. The court found that the plaintiff would be substantially prejudiced without further particulars, particularly concerning the control exercised by the plaintiff over various entities within the WU Group and the timeframes in which the events and circumstances pleaded occurred. The court also found that the defendant's proposed new defence constituted reasonably arguable grounds for defences of fair comment, honest opinion, and qualified privilege, and these issues should be left to be dealt with by the trial judge. The court reserved costs and adjourned the matter to a Directions Hearing on 16 August 2007 at 11:30 am.

Orders