Setka v Abbott
[2013] VSCA 345
•3 December 2013
S APCI 2012 0231
---
--- Interlocutory appeal – Leave to appeal – Defamation – Application to strike out defences - Grounds of appeal (with one exception) not argued before trial judge, nor relied upon in the original Notice of Appeal – Applicant plaintiff put on notice by respondent defendants, months before hearing of leave application, that objection taken to new grounds being pursued - No steps taken by the applicant’s advisers to agitate new matters raised before trial judge – Whether Court should entertain interlocutory appeal on the basis of a point of law not advanced below – Over-arching obligations under the Civil Procedure Act 2010 – Application for leave to appeal dismissed. Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Suttor v Gundowda (1950) 81 CLR 418; R v Chaouk [2013] VSCA 99; Yara Australia P/L v Oswal [2013] VSCA 337. Defamation Act 2005; Civil Procedure Act 2010. ---
|
THE COURT:
On 28 November last, for reasons to be later published, the Court dismissed a summons dated 26 November 2012 by which the plaintiff (it is convenient to so describe him throughout these Reasons) sought leave to appeal against orders made by Beach J (as his Honour then was) on 12 November 2012.[1] The Court reserved the costs of the application until the parties had the opportunity of studying its Reasons and making written submissions.
[1]In doing so, the Court stated that it was without prejudice to the plaintiff’s right to bring a fresh application for leave to appeal on ground 2 set out in a Notice of Appeal dated 20 March 2013. And, as will been, the Court did not deal with the merits of grounds 1, 3, 4 and 5 set out in that document.
These are our Reasons.
The plaintiff sues the defendants for damages for defamation. He commenced his claim by writ filed 15 May 2012. The defamation is alleged to have been made in a speech by the first defendant on 10 February 2012, it being republished by the second defendant on the same day.
The plaintiff relies upon four imputations which, he pleads, were conveyed by the speech. It is unnecessary to set them out.
The defendants deny that the speech conveyed any of those imputations. They raise also a so-called Polly Peck defence,[2] and a contextual truth defence. The former is a common law defence, and the latter is a statutory defence by s 26 of the Defamation Act 2005.
[2]Polly Peck (Holdings) Plc v Trelford [1986] QB 1000.
Based upon an exchange of correspondence between the parties, the plaintiff brought an application to strike out those defences, and also a Lange[3] defence pursued by the second defendant.
[3]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
The application, which had been the subject of directions on 31 August 2012, was heard on 31 October 2012. In substance, the issues agitated before his Honour were:
(a)whether the imputations pleaded in the Polly Peck defence raised by each defendant were capable of arising;
(b)whether such imputations were a permissible variant of the plaintiff’s pleaded meanings;
(c)whether three particulars alleged in support of the defendants’ imputations were capable of supporting aspects of the Polly Peck justification plea;
(d)whether one imputation pleaded by the defendants in respect of the contextual truth defence must necessarily fail to establish the defence, because it could not be concluded that the imputation did not further damage the plaintiff’s reputation;
(e)whether a Lange qualified privilege defence raised by the second defendant must necessarily fail.
On 12 November 2012, the judge dismissed the plaintiff’s application. He published reasons.
Thereafter, the plaintiff filed an application for leave to appeal against his Honour’s orders. Dated 26 November 2012, the application was supported by an affidavit affirmed that day by the plaintiff’s solicitor. Exhibited to that affidavit was a proposed Notice of Appeal which relied upon these grounds:
1.The learned primary judge erred in law in misdirecting himself as to the principles relevant to determining whether the defendants’ pleaded imputations are capable of arising from the publication sued upon.
2.The learned primary judge erred in law in that he overlooked and therefore failed to give any weight to part of the publication sued upon (being the words ‘We know they [home visits] take place because people like Mr Setko [sic] have told us that they take place’) in determining whether the defendants’ pleaded imputations are capable of arising from the publication.
3.The learned primary judge erred in law in misdirecting himself as to the principles relevant to determining whether the defendants’ pleaded imputations are permissible variants of the plaintiff’s imputations.
4.The learned primary judge erred in law in that he overlooked each defendants’ further and better particulars dated 1 August 2012 in which the defendants identified which sub-paragraphs of the particulars to paragraph 12 of the defences are relied upon to justify the pleaded imputations, and consequently he misunderstood the defences and misunderstood the plaintiff’s application to strike out some of the particulars.
5.The learned primary judge erred in law in that he misunderstood the plaintiff’s alternative complaint about the defendants’ Contextual Truth defence, namely that a jury could not reasonably conclude that the plaintiff’s meanings do not further harm the plaintiff’s reputation because of the substantial truth of the defendants’ imputation that the plaintiff was a person who had engaged in extortion.
6.The learned primary judge erred in law in that he misdirected himself as to the principles relevant to determining whether the publication sued on constituted a discussion of government or political matters for the purposes of the Extended Qualified Privilege (‘Lange’ defence).
Each of these grounds focused upon the matter as it had been argued, and decided by the judge.
On 4 December 2012, the Court of Appeal Registry advised the parties that the plaintiff’s application would be heard on 1 February 2013; and, if it was granted, that the substantive appeal would also be heard.[4]
[4]Whelan JA and Vickery AJA had determined upon this course on 26 November 2012.
That hearing date was vacated. The matter was refixed for 1 March 2013. But again the hearing date was vacated, it was said because the plaintiff’s advisors had foreshadowed amendment of the proposed grounds of appeal.
By Notice of Appeal filed 20 March 2013, the plaintiff specified five grounds which, with one exception, had not been argued before the judge in November 2012, and had not been relied upon in the original Notice of Appeal. Thus -
1.Paragraph 11 of the defence of each respondent does not plead a good defence.
2.The respondents’ imputations in paragraph 11 of their defences are different in substance from the imputations in paragraph 8 of the appellant’s statement of claim.
3.The respondent’s imputations in paragraph 11 of their defences are embarrassing and should be struck out.
4.The imputations in paragraphs 11 and 13 of each respondent’s defence are bad in form.
5.If the imputations in paragraph 13 of the respondent’s defences are held to be the same in substance as the appellant’s imputations at paragraph 8 of the statement of claim, the respondents’ contextual imputations must be struck out.
On 10 April 2013, a Judicial Registrar ordered, inter alia, that – (1) an agreed draft summary be filed by 29 April; (2) the plaintiff file and serve an outline of submissions by 29 April; and (3), the defendants file and serve outlines of submissions by 21 May.
The plaintiff in fact filed and served an outline dated 30 April. Essentially, the plaintiff sought to argue –
§By ground 1, which is new (in the sense described in [13] above) that a Polly Peck defence is unavailable in law.
§By ground 3, which is new, that the Polly Peck defences should be struck out as being embarrassing. It was contended that the defendants must specify to which one of the plaintiff’s pleaded imputations the imputations pleaded by the defendants respectively relate.
§By ground 4, which is new, that the Polly Peck and contextual truth imputations should be struck out for being bad in form – that is, ‘entirely vague and general’.
§By ground 5, which is new, that if it be the case that the plaintiff’s pleaded imputations and the defendants’ pleaded imputations were the same, then necessarily the contextual truth imputations must be struck out.
Only ground 2, by which the plaintiff contended that the defendants’ pleaded imputations were materially different than those pleaded by him, remained of what was argued below, and what was raised by the first Notice of Appeal.
The first defendant filed and served an outline dated 21 May. Although the outline met the substance of each of the five grounds, it did so having reminded the court that:
An appellate court should always exercise particular caution before intervening in practice and procedure.
And
This Court will not ordinarily entertain an appeal by a party on the basis of a point of law which that party did not advance below. This principle applies with even greater force to interlocutory appeals.
The second defendant filed and served an outline dated 22 May. Whilst meeting the substance of the grounds, the outline contended, on four distinct occasions, that most of the grounds had not been raised below ‘and should be rejected on that basis alone’.
In short, and without there being any room for doubt, the plaintiff’s advisors were put on notice six months ago that the defendants were contending that this Court should not entertain the four new grounds.
At the outset of the hearing on 28 November, the Court asked senior counsel for the plaintiff (who was not senior counsel who appeared for the plaintiff below) whether it was intended to rely upon all the grounds in the second Notice of Appeal. Counsel answered affirmatively. The Court then requested counsel to make submissions as to - (1) why the plaintiff should be permitted to argue the new grounds; and (2), whether, if the Court would not entertain grounds 1, 3, 4 and 5, there was any present utility in agitating ground 2.
Counsel submitted variously that - (1) it would be convenient for the Court to deal with all grounds; (2) it would be cost efficient to do so; (3) the matters sought to be agitated included important matters of principle under the Defamation Act 2005; (4) if the plaintiff had to argue the new points before a judge of the Trial Division, the judge would inevitably hold himself or herself bound to say that a Polly Peck defence remains available. Thus, it would be a pointless exercise to require the plaintiff to argue the new points before a single judge; (5) if the Court declined to hear argument on all the grounds, it would give rise to undesirable ‘snakes and ladders’; (6) the defendants were not alleging that they would be prejudiced in dealing with the substance of all grounds straight away; (7) he proposed to begin by arguing ground 2, and if that ground succeeded, it would be unnecessary to go to ground 1 and the other new grounds; (8) if the Court came to consider the new ground 1, he would be asking it to disregard passages in the judgment of McColl JA in Fairfax Media Publishing Pty Ltd and Ors v Kermode[5] because what her Honour had written was very over-wide obiter dicta; (9) one part of his intended argument under cover of ground 1 would be that, by the effect of statute, a Polly Peck defence is no longer available; whilst another part would be that Polly Peck was never properly an available common law defence in Australia; (10) there are authorities which say that new issues may be raised on appeal;[6] (11) there are authorities which hold that it would not be appropriate – he went so far as to submit that it would be impossible – to raise the substance of grounds 1, 3, 4 and 5 on a fresh application to a single judge; (12) the Court had not indicated before the hearing that it was concerned about dealing with the new grounds at the hearing of the present application.
[5][2011] 81 NSWLR 157.
[6]He referred to Suttor v Gundowda (1950) 81 CLR 418.
Orally, senior counsel for the defendants maintained their objection to the Court dealing with the new grounds. Senior counsel for the first defendant added that the statutory construction question raised by ground 1 was one with which a single judge could deal; and that the matters raised by grounds 3, 4 and 5 would require the making of value judgments by a judge.
In our opinion, there were powerful arguments against the Court dealing with any of the grounds at the hearing on 28 November.
First, even in the case of a final judgment, a court will not ordinarily entertain an appeal on the basis of a point of law which was not advanced below.[7] Suttor v Gundowda, referred to by plaintiff’s counsel, was a case in which evidence might have been called to rebut an argument sought to be agitated by the appellant. The position in those circumstances was not in doubt. The argument should not be permitted.[8] The High Court there did not have to deal with the question of the competence and expediency of a court of last resort entertaining a new question of law – a matter mentioned in a passage cited from Connecticut Fire Insurance Co v Kavanagh.[9] But later High Court authority[10] has established the position in that connection. It is as we stated it in the first sentence of this paragraph.
[7]Metwally v University of Wollongong (No2) (1985) 59 ALJR 481, 483; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [51] (Gleeson CJ, McHugh and Gummow JJ).
[8] Suttor v Gundowda (1950) 81 CLR 418, 438.
[9](1892) AC 473, cited in Suttor at 438.
[10]See the cases cited at footnote 7.
Second, this and other courts have said that this position is the more so in the case of an interlocutory appeal (which was the nature of the matter before us). So, in R v Chaouk[11] this Court said:
Indeed, if anything, unless new facts come into existence or are discovered which make an interlocutory order unjust, the principle that a party is bound by the conduct of his case applies with even greater force to interlocutory appeals than to appeals against final orders[12]…
[11][2013] VSCA 99.
[12]Ibid [10].
The rationale is obvious enough. Whilst it is very undesirable, and - using counsel’s language – ‘inappropriate’ that interlocutory process should be fragmented, no authority was cited to us which would prohibit a further application, seeking to agitate the new grounds, being made to a single judge. Indeed, counsel’s submissions were internally inconsistent, because a number of them assumed, contrary to his ‘prohibition’ submission, that such an application could be made. Of course, the substance of the grounds could in any event be argued at trial; and, if rulings and the ultimate decision were adverse, could be agitated on appeal.
Third, the plaintiff’s submission that the new grounds raised important issues of principle, the elucidation of what counsel wished to argue under cover of ground 1 (see [21](3), (8) and (9)), and his ‘snakes and ladders’ allusion, were no doubt intended to make it clear that, even if a fresh application had to be made to a single judge, the matter would eventually find its way back to this Court. Regardless, principle is not abandoned for expediency; and the application of principle means that, if the matter was to return to this Court, it would do so accompanied by the considered reasons of the judge who heard the application
Fourth, contrary to the submissions for the plaintiff, a single judge would be able to deal with almost all of the issues raised by the new grounds without any inhibition. The only qualification is that a judge, in light of David Syme & Co Ltd and Anor v Hore-Lacy[13] and later Court of Appeal decisions in this State, would doubtless reject what we have called the second part of the plaintiff’s ground 1 argument.
[13](2000) 1 VR 667.
Fifth, the submission which plaintiff’s counsel advanced at one stage that, by his beginning with ground 2, and assuming acceptance of the plaintiff’s argument, the Court would not have to consider ground 1, was unpersuasive. It proposed, in substance, that the Court might dispose on the facts with a defence which on the plaintiff’s argument did not exist in law. We add, for completeness, that counsel, later in his argument, appeared to accept that the ‘fundamental question’ needed to be decided.
Sixth, the plaintiff’s arguments concerning convenience and cost efficiency also sought, in our opinion, to elevate expediency at the expense of principle. There are good reasons why a party should not be permitted to construct a new case on appeal. If forensic behaviour such as the plaintiff has engaged in was condoned by this Court, which it would have been had we permitted the plaintiff to argue the new grounds, there would be encouragement of inadequate preparation of cases, and encouragement of unnecessary proliferation of costs. True it is that if this Court had dealt with all grounds on 28 November, the costs associated with making a fresh application could have been avoided. But that does not meet the generic point that inadequate or incomplete preparation of cases leads to unnecessary proliferation of costs. Indeed, this case illustrates the costs consequences in those circumstances.
Seventh, it is a related matter, the over-arching purpose which, by operation of the Civil Procedure Act 2010, applies to both litigants and their advisers, is not simply a pious but toothless statement of the considerations which are to motivate participants, lay and professional, in civil litigation. So much was powerfully emphasised by this Court in Yara Australia P/L and ors v Oswal.[14] The just, efficient, timely and cost effective resolution of the real issues in dispute in a case cannot be facilitated if a party and the party’s advisers do not take adequate steps to identify the issues which require determination early in the life of the proceeding. This is not to deny that the circumstances of litigation may develop in unpredictable ways. But here, the plaintiff was confronted with a pleadings issue of a kind which for years and years has been the meat and drink of defamation lawyers. And yet the plaintiff’s preferred arguments, by March this year, were remote from the arguments pursued in October 2012. It may be that the explanation for the radical change of tack is attributable to the change in plaintiff’s senior counsel. But of course we refrain from speculation.
[14][2013] VSCA 337.
Eighth, counsel seemed to assign blame to the Court for finding himself in the position that the plaintiff might be unable to advance his grounds on 28 November. There was nothing to this submission. As we have said earlier, six months ago the defendants took objection in writing to the new grounds being pursued on the existing application for leave to appeal. But the plaintiff’s advisers took no steps to bring the matter before a judge and agitate the matters raised by the new grounds. Had that been done, there is no reason to think that a ruling would not have been given which could have been tested by the losing party or parties in tandem with the challenge raised by ground 2 of the 20 March Notice of Appeal.
Ninth, whether or not the defendants claimed to be prejudiced by all grounds being argued on 28 November was beside the point. They had objected to the new grounds being argued, and the application of principle was not to be overborne by assumed absence of prejudice.
Tenth, there was no utility in hearing argument on ground 2 in circumstances where the plaintiff desired and intended to pursue his ground 1 argument.
72
8
0