Tsamis v Victoria (No 5)
[2019] VSC 590
•16 August 2019 (Reasons 29 August 2019)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06898
| MARTHA TSAMIS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
---
JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2019 |
DATE OF RULING: | 16 August 2019 (Reasons 29 August 2019) |
CASE MAY BE CITED AS: | Tsamis v Victoria (No 5) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 590 |
---
PLEADINGS — Defamation — Application to amend defence during trial — Further particulars of justification —Proposed particulars were of post-publication conduct — Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Sowden with Mr H Kirimof | Mr Gary Prince |
| For the Defendant | Mr P Hayes QC with Ms R B Sion and Mr J C Hooper | Russell Kennedy |
HIS HONOUR:
In this proceeding the plaintiff claims she was defamed by the defendant in two publications. On 7 August 2019, a jury was empanelled, the plaintiff opened her case and the defendant opened its defence. On 8 August 2019, the plaintiff commenced her evidence.
On 16 August 2019, I refused the defendant’s application for leave to amend its defence to add further particulars of justification. A necessary consequence was that the defendant was not able to call certain evidence from several witnesses because that evidence would be beyond the plaintiff’s pleaded case and therefore irrelevant.
What follows are my reasons for this ruling.
On 30 July 2019, shortly prior to the commencement of the trial, the defendant, by leave, filed a second further amended defence that by paragraphs 14–17 pleaded, with extensive particulars, the statutory justification defence pursuant to s 25 of the Defamation Act2005 (Vic) and the common law defence of truth in respect of seven of eight imputations alleged to be collectively carried by two publications.
On 9 August 2019, two former employees, Adam Robert Kok and Martin De Bono attended court. Following some communication between those persons and the defendant’s instructing solicitor, the defendant added them to its witness list, counsel informing me that they has not previously been aware of these potential witnesses. Initially, the defendant invited me to identify these potential witnesses to the jury in case they were known to jury members. At that stage, the defendant, who still had the opportunity to further open its case once the plaintiff closed her case, did not indicate the substance of the evidence to be lead from Mr Kok and Mr De Bono and a third witness, Mr Kok’s father.
When cross-examining the plaintiff, the defendant’s counsel put aspects of the defendant’s case to the plaintiff at which time some particulars of the evidence to be given by these witnesses was revealed. Counsel for the plaintiff did not immediately challenge the want of relevance of this evidence on the basis that the manner in which the defendant sought to use the evidence in support of its justification/truth defences lay outside the scope of its particulars. Although the plaintiff foreshadowed that there might be objections to these witnesses giving evidence, she did not object to responding to these allegations when cross-examined. I will come to those responses in due course.
I pause to observe that while the defendant is confined in the evidence that it can call in support of its justification defence to its pleaded particulars, the defendant was not so confined in cross-examination when it was entitled to elicit other evidence in support of that plea. Once a witness enters the witness box to give evidence, that witness is exposed to cross-examination and the evidence adduced is admitted for all purposes unless the court otherwise directs.[1]
[1]Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 [226].
When the opportunity arose to debate the plaintiff’s objection to the evidence of these witnesses, I required the defendant to submit proposed amended particulars to identify precisely how this evidence would be used. The defendant also opened more extensively the evidence that it proposed to call.
The general rule is that an imputation must be justified by reference to facts in existence at the time of publication. An exception is made where an imputation amounts to a general charge against the character of the plaintiff. The exception recognises that acts which bear upon the truth of a pleaded imputation of that type that occurred within a reasonable period after the date of publication of the defamatory matter will be admissible.[2] Admissibility of post‑publication material as evidence of the truth of the defamatory publication at the time of publication is conceptually based upon a requirement of contemporaneity. Accordingly such material can be relied on if there is both a qualitative proximity and a temporal proximity between the defendant’s particulars of truth and the imputation.[3]
[2]Maisel v Financial Times Ltd [1915] 3 KB 336; Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 [227].
[3]Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 278 [217]–[218].
Careful attention must be paid to both the nature of the libel, particularly the words used in context and by consideration of the whole of the publication, and to the nature of the acts constituting post-publication material.
In Maisel v Financial Times Ltd (‘Maisel’),[4] the plaintiff asserted publication of an imputation that ‘his character and reputation was such that he was likely to have misappropriated funds of companies with which he was connected’. In its defence of justification, the defendant relied on post-publication events. Pickford LJ said:
the innuendo of the plaintiff … alleges that this libel has three meanings …: that he was of a character and reputation such that he was likely to have misappropriated; that he would have misappropriated if he had had the opportunity and that he was an unfit person to be a director — the third one I have left out. That being the meaning as alleged and the defence of justification which is set up, it seems to me that it is impossible to exclude, by one general proposition, any particulars of acts that took place after the libel. The allegation is that he was of a character to misappropriate funds and that he would misappropriate funds if he got the chance. It seems to me that it cannot be irrelevant to show that very shortly after the libel, as soon as he did get the chance, he did misappropriate. [5]
[4][1915] 3 KB 336.
[5]Ibid 341 (emphasis added).
Pickford LJ limited the temporal scope of relevant conduct to that which occurred ‘a short time after the libel’.[6] In that case, the acts relied on by the defendant commenced a month after publication and continued systematically for another three months. Pickford LJ observed that acts done so long after the libel that they would have no relevance at all, having regard to the time of the libel, would be remote and inadmissible.
[6]Ibid 342.
This statement of principle has been approved in Australia.[7] The question of proximity is fact sensitive and the focus of the enquiry is whether the time between the post‑publication conduct and the defamation was such that there was a relation between such conduct and the imputation that the defendant sought to justify.
[7]Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798, 810; Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 [227]; Habib v Nationwide News Pty Ltd [2010] 76 NSWLR 299, 372–5 [314]–[333]; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 278 [217]; Fenn v Australian Broadcasting Corporation [2018] VSC 449 [23].
Attention is accordingly directed towards the nature of the imputation.
Departure from the general rule is limited to circumstances where an imputation amounts to a general charge against the character of the plaintiff.[8] This question must be approached with care. The imputation, set out above, in Maisel was held to constitute a general charge against the character of the plaintiff. Other cases in which a similar conclusion has been reached were collected and analysed by the Court of Appeal in Habib v Nationwide News Pty Ltd (‘Habib’).[9] In Habib, justification of an imputation by reference to post-publication conduct was permitted because the publication, properly analysed, imputed a propensity to Habib that was indicative of his character generally and was not confined to any specific incident. The Court of Appeal concluded that the nature of the imputation opened up the application of the Maisel exception to the conventional limitation of justification material to material in existence at the time of publication. Provided there was sufficient temporal proximity between publication and the post-publication conduct sought to be relied on, justification by reference to such conduct was permitted.
[8]Habibv Nationwide News Pty Ltd [2010] 76 NSWLR 299, 371[313] (‘Habib’).
[9]Ibid 374–5 [323]–[332].
Habib was followed in Channel Seven Sydney Pty Ltd v Mahommed.[10] McCall JA stated:
in the defendant’s case, on the issue of justification, evidence of facts which come into existence after the time of publication may be admitted where an imputation amounts to a general charge against the character of the plaintiff. This category of evidence was discussed extensively in Habib v Nationwide News Pty Ltd. It does not require repetition. Suffice it to say the authorities hold that such material can be relied upon if there is both a ‘a qualitative proximity [between the defendant’s particulars of truth and] … the charge laid in the imputation and the particulars must be of matters that have a temporal proximity’ — propositions which have resonance with the admissibility of evidence going to reputation.
However, the authorities on the issue of the admissibility of such evidence on justification tend to support the admissibility of post-publication material as evidence of the truth of the defamatory publication at the time of publication — hence the requirement of contemporaneity. [11]
[10](2010) 278 ALR 232.
[11]Ibid 278 [217]–[218] (McCall JA, Spigelman CJ agreeing at 236 [1], Beazley JA agreeing at 236 [2]) (citations omitted).
In the present proceeding the defendant seeks to justify seven imputations in the following form:
In their natural and ordinary meaning or alternatively by reason of the matters set out below, the words were defamatory of the plaintiff and of the plaintiff in the manner in which she manages Inflation and meant and were understood to mean that the plaintiff:
(a)was operating Inflation in a manner that resulted in drug dealing in and around the venue;
(b)was operating Inflation as a ‘honey pot’ (meaning a source of attraction) for drug dealers;
(c) had allowed minors to enter the venue in breach of the provisions of the Liquor Control Reform Act 1998;
(d)had operated Inflation in a way that jeopardized her patrons’ health and resulted in many hospital admissions;
(e)managed the venue in a manner that was conducive to drug trafficking, drunkenness and violence;
(f)operated the venue in a manner that resulted in drug overdoses in and around the venue; and
(g)operated the venue in a manner that allowed drugs to be sold and consumed in and around the venue.
The defendant did not persuade me any of these imputations announced to a general charge against the character of the plaintiff. That being so there is no basis for the exception to the conventional limitation on justification material to that in existence at the time of publication. Looking first at the imputations, each is an allegation of specific conduct in the operation of Inflation Nightclub and not open to be construed as a general charge against the character of the plaintiff. Secondly, each imputation is expressed in the past tense plainly referring to a state of affairs that existed at or prior to the time of publication. Each imputation is about specific conduct, acts in operation and management of a nightclub venue, that occurred prior to publication and cannot be reasonably construed, as the defendant would have it, as a general charge against the plaintiff’s character. Consideration of each imputation in the context of the whole of the transcripts does not affect this conclusion.
I am satisfied from this assessment of the nature and context of the imputations, before examining the nature of the post-publication conduct that the defendant proposes to rely on, that the defendant must be confined in the presentation of its justification defence to circumstances occurring prior to and known at the time of publication. Otherwise the trial of the proceeding will be unduly prolonged by analysis of inappropriate and irrelevant matter.
Although it is unnecessary for my conclusion, I would add that in my view the evidence proposed to be called about the post-publication conduct lacked both a qualitative proximity and a temporal proximity to the subject matter of the imputations sought to be justified. In that sense, the second limb of the test is not satisfied.
The defendant explained that the witness Adam Kok would give evidence about the system of management of the nightclub in the middle of 2014, approximately six months after the date of publication. Properly understood, Mr Kok’s evidence was not so much about the system that was in place but about whether that system was systematically breached. The defendant would contend that such an inference could be drawn from some particular examples to be provided by Mr Kok.
In this respect the facts more closely resemble those considered by the Victorian Court of Appeal in Raul Amon International Pty Ltd v Telstra Corporation Ltd[12] where an issue on the plea of justification was whether the plaintiff’s premises offered R-rated videos for sale in late 1993. The Court concluded that it would be neither relevant nor admissible to prove that R-rated videos were offered for sale in March to May 1995. That case was more clear cut as the delay was greater. Nevertheless, I am satisfied that the period of six months to the start of the period to be described by Mr Kok, is insufficiently proximate to the date of publication to satisfy the notion of contemporaneity that underlies the justification for permitting post-publication material to be relied upon. I am fortified in this conclusion because the defendant could not demonstrate a connection between the post-publication conduct and the pre-publication period.
[12][1998] 4 VR 798, 810.
When cross-examined about the evidence that the defendant proposed to call from Mr Kok, the plaintiff accepted that the system for ID checking and searching of patrons entering the nightclub was effectively the same in mid-2014 as it had been in 2013. However she rejected the proposition that the system was breached in the manner to be described by Mr Kok, either in 2014, as he would have it, or in 2013. The evidence of breach of systems that Mr Kok would give was also put to the plaintiff’s head of security, Mr McDonald and he too denied that such conduct occurred either in 2014 or 2013.
The defendant accepted that in the context of these denials there was no connection between the conduct that breached the plaintiff’s system in mid-2014 and its operation in 2013. The defendant had no other evidence that could make that connection. The essence of the defendant’s submission was that the jury could have regard to the evidence of what occurred in mid-2014 in order to draw an inference that the system would have failed in 2013 by reason of like breach behaviour. There was no evidence that any security staff working at the door behaved in the manner in which Mr Kok described his own behaviour in mid-2014. There was no evidence of like breach of system behaviour. It could not be said that the plaintiff’s evidence that the system that operated at the door was the same in 2014 as in 2013 permitted the inference that the system would have been breached in the previous year when Mr Kok did not work there.
The defendant contended that in an inferential case, what occurred in 2014 could properly form part of the factual matrix from which the jury might draw the appropriate inference. The defendant contended that because the system was breached in 2014 it could be inferred that it happened in 2013 in that way. It also happened previously in 2013 because it happened within a reasonable time after publication. The defendant’s contention was that the jury could infer from evidence about observations of patron behaviour in 2013 that the ID checking and search processes at the door, the plaintiff’s systems of management, were breached in 2013 permitting an inference that in management and operation the plaintiff’s systems failed. The jury could then build on that inference to infer that what Mr Kok described in 2014 occurred in 2013.
I do not consider this reasoning of inference from inference to be proper. It is tenuous and cannot be properly based in established fact. There were many reasons why the plaintiff’s systems could not be regarded as perfect, reasons that could explain the other evidence without requiring a probable inference that what Mr Kok described probably happened in 2013. I was not persuaded that in the absence of some evidentiary connection that linked conduct in breach of systems that Mr Kok would identify in 2014 to the operation of those systems in 2013, relevant conduct in the pre-publication period could be established.
As stated earlier, the defendant was not confined by its particulars in what it put to the plaintiff and her witnesses in cross-examination, but having done so the defendant could not establish any proximate connection between the post-publication conduct and facts in existence at the time of publication. There would be no other evidence that might have done so.
0
3
0