Turner v Bulletin Newspaper Co Pty Ltd

[1974] HCA 25

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Mason and Jacobs JJ.

TURNER v. BULLETIN NEWSPAPER CO. PTY. LTD.

(1974) 131 CLR 69

25 June 1974

Practice (Vict.)

Practice (Vict.)—Action—Pleading—Statement of claim struck out as tending to embarrass fair trial of action—Leave to deliver fresh statement of claim on certain conditions in default of compliance with &hich action to stand dismissed—Power to make order—Compliance with conditions—Rules of the Supreme Court (Vict.), O. 19, r. 27.* * Order 19, r. 27 of the Rules of the Supreme Court (Vict.) provides: "The Court or a Judge may, at any stage of the proceedings, order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action . . ."

Decisions

June 25.
The following written judgments were delivered:-
BARWICK C.J. This appellant commenced an action against the respondents in the Supreme Court of Victoria on 9th May 1967. The causes of action which he has desired to assert and pursue are in defamation. The first statement of claim which he served was struck out by a Master of the Court by consent of the parties. A second statement of claim suffered a similar fate at the hands of the Master, not for not disclosing a cause of action but because it was so expressed as to be embarrassing and calculated to delay the course of the proceedings. The Master ordered that the action be dismissed for want of prosecution if a further statement of claim were not served within a stated time. An appeal to the Court against the Master's order was unsuccessful, the appellant having leave to serve yet a further statement of claim and also leave to appeal to the Full Court. It seems to me that the judge in striking out the whole of the second statement of claim with leave to file a further statement of claim was acting on the footing that the objectionable matter in the pleading was so interwoven with matters properly there, that it was more convenient to strike out the whole pleading rather than attempt a piecemeal excision of the matter in the pleading which fell within some one or more of the descriptions in O. 19, r. 27 of the Rules of the Supreme Court of Victoria. Whether or not the circumstances justified such a course need not now be considered. (at p72)

2. No appeal to the Full Court was brought but a third statement of claim was served in substantially the same terms as the second statement of claim. The appellant claimed to have taken this course to enable him to test upon appeal the decision of the judge as to the second statement of claim. Though this was a mistaken course the judge, asked on summons to strike it out as contumaciously served as well as embarrassing, accepted the appellant's explanation of his having served the third statement of claim. His Honour affirmed his earlier view that the statement of claim should be struck out, it being "entirely appropriate to describe it as a statement of claim exhibiting certain features objectionable as a matter of good pleading". He struck out the third statement of claim but refused to order the dismissal of the action for want of prosecution. His Honour, as it seems to me, regarded his order as an exercise of the power given by O. 27, r. 1. Acting on the decision of the Court of Appeal in Morgan v. Odhams Press Ltd. (1970) 2 All ER 544; (1970) 1 WLR 820 , his Honour felt able, as ex facie the publications of which complaint was made did not refer to the appellant, to conclude that the statement of claim did not disclose a cause of action in defamation. His Honour gave leave to appeal and cross-appeal, and leave to make an application to dismiss the action for want of prosecution in the event that no appeal was duly instituted against this order. He did not give leave to file a further statement of claim. (at p73)

3. The appellant exercised his leave to appeal and the defendants their leave to cross-appeal. (at p73)

4. Upon those appeals the Full Court of the Supreme Court dismissed both the appeal and the cross-appeal. But in doing so it ordered that the appellant have leave to serve a further statement of claim subject to the following conditions:
"Condition (a): The statement of claim shall not make any claim in respect of any publication other than those referred to in the previous pleadings as the Dallinger letter, the Ian Turner letter and commentary, and the statement to shareholders. Condition (b): The statement of claim shall not contain any reference to the campaign or discussion referred to in the previous pleadings, nor any references to publications other than the three abovementioned unless such references are made only in particulars of facts by reason of which an innuendo or reference to the plaintiff is alleged to arise from one of the said three publications." (at p73)

5. The Court further ordered that failing service by the plaintiff of a statement of claim complying with these conditions within six weeks of the date of its order (19th October 1971) the action stand dismissed. (at p73)

6. I should add that it may properly be said that the appellant submitted to and accepted the two conditions of the Full Court's leave to file a further statement of claim. But, in my opinion, it cannot with certainty be said that he submitted or agreed to the form of the order which was made. But, having regard to the view I have formed of the fate of this appeal, any question of consent or no consent in this connexion is of no consequence. (at p73)

7. The Full Court had the advantage of the House of Lords' decision in Morgan v. Odhams Press Ltd. (1971) 2 All ER 1156; (1971) 1 WLR 1239 and as it seems to me, by the grant of leave to file a further statement of claim on conditions, indicated the matter in the third statement of claim which it considered objectionable under O. 19, r. 27. The effect. of its order giving leave to file a further statement of claim which should not contain the specified matters was a means of removing objectionable matter in the pleading. Again, whether or not this was the better course to pursue in the circumstances need not now be considered. But it is worth recalling, I think, that the power given by O. 19, r. 27 only extends to the removal from a pleading of what I have compendiously called objectionable matter. It does not extend to ordering judgment. Where, because of almost insuperable difficulty in extracting the objectionable matter from the pleading, repleading is directed by means of an order striking out the whole pleading with leave to serve a statement of claim, it is appropriate to fix a time for the service of that pleading, thus paving the way for the exercise of the power given by O 27, r. 1. (at p74)

8. The primary judge in this case properly, in my opinion, refused when striking out the third statement of claim to make a self-operating order dismissing the action. In my opinion, the better course where further pleading is limited either as to content or time for service is to allow the rules themselves to operate in default of a pleading, thus necessitating a motion for judgment on the hearing of which any matters proper for the consideration of the Court in its exercise of discretion may be fully considered. In this instance, moved to do so by the evident persistence of the appellant, the Full Court made a self-operating order dismissing the action in default of the service of a statement of claim complying with the conditions laid down. But, because of the presence of conditions in the order, any attempt to put that order into execution was bound to be fraught with difficulty, difficulty which, in my opinion, neither a litigant nor a Master ought to be asked to resolve. However, because of subsequent events, both the self-operating order and the judgment for the defendants purportedly entered in pursuance of its terms ceased to be of significance in the case. Dunn J., rightly as I think, set aside the judgment entered by the Prothonotary and from this order no appeal is brought. It may be observed, however, that the Full Court in giving reasons for its order now under appeal might be thought to have acted upon its self-operating order, though the order of Dunn J. which was before the Full Court on appeal was an order made by him on motion under O. 27, r. 1. (at p74)

9. The appellant served a fourth statement of claim. It is necessary to detail some of its provisions. In par. 8 of that document he alleges in traditional form the publication "of and concerning the plaintiff and of and concerning him in the way of" his formerly held offices on the staff of the University of Melbourne and of his more recent office as an agent and sub-agent of the A.M.P. Society certain writings or publications which he sufficiently describes in annexures. In par. 9 he says that each of those publications was according to its ordinary and natural meaning defamatory of him. In par. 10 he lays a series of innuendoes which he says one of the publications meant in relation to him. Paragraph 12 is in the following terms:
"The plaintiff has at all times in this action desired to plead that other publications of the defendants referred to in the endorsement to the Writ were defamatory of him and would so plead in this statement of claim were it not for the condition imposed by the Order made by the Full Court of the Supreme Court on the 19th day of October 1971." (at p75)

10. In pars. 13, 14 and 15 the appelland alleges that a further publication (also set out in an annexure) by one of the defendants was defamatory of him both in the ordinary and grammatical meaning of the words used and in the sense of the innuendoes set out by the appellant and claimed by him to be defamatory of him. (at p75)

11. So far it is to my mind abundantly clear that the appellant's statement of claim sufficiently alleges causes of action in an appropriate and unembarrassing form. (at p75)

12. The three publications (annexures A, B, C and F to the statement of claim) upon which the appellant founds his claim to damages are the three documents to which condition (a) of the Full Court's order refers. No claim for relief in respect of any other publication is made. However, par. 12 requires brief consideration. Dunn J., who heard the motion for judgment to which I later refer, thought this paragraph to be in breach of condition (a) but the Full Court found no occasion to pass on the question. According to the reasons for judgment of the Full Court, "no breach of this condition (condition (a)) has been alleged by the respondents": nor have I heard any such suggestion in the argument of this appeal. But two things may be said of the paragraph: first, that it makes no claim in respect of any publication: on the contrary, the plaintiff says he does not make any such claim, though he desires it to be known that his failure to do so is not entirely voluntary. Second, it is a paragraph which ought not to be found in the statement of claim. Although perhaps not worth the effort, it could properly be struck out pursuant to O. 19, r. 27. Its inclusion is not, in my opinion, a breach of condition (a).

13. More significant and central to this matter is the submission and the finding of the Supreme Court that par. 16 is in breach of condition (b) of the said order. The paragraph is as follows:

"16. In establishing that the publications comprised in Annexures "A", "C" and "F" referred to the plaintiff and bore the meanings in relation to him as alleged in pars. 10, 11 and 15 hereof the plaintiff will rely on the facts and matters referred to in the said publications, and on the context of other publications of the defendants, and of correspondence and of statements referred to in the publications last and previously mentioned, and will rely in particular on the facts and matters set out in the Annexure to this statement of claim marked "E" in so far as such facts and matters existed at the date of the publication in question and on the knowledge on the part of persons to whom the said publications comprised in Annexures "A", "C" and "F" were made, of each such fact or matter severally or of each such fact or matter in combination with other or others of such facts or matters."

Annexure "E" refered to in this paragraph is as follows:

"(a) The defendants in the issues of The Bulletin on the dates and pages set out in Annexure to the statement of claim marked "D" wrote and published in relation to the University of Melbourne and in particular to the Department of Social Studies and Criminology thereat and to the staff members and Board members of those departments or some of them, articles and comments constituting a continuing discussion and purporting to comprise and being understood to comprise a campaign against alleged communist activities in the university. By these publications the defendants meant and were understood to mean that there were persons within each of the said departments who were communists and who were guilty of crimes and other malpractices and more particularly guilty of the conduct described in the following sub-pars. of the statement of claim: - sub-pars. (a) to (o) of par. 10; sub-pars (b) to (d) of par. 11 and sub-pars (b) and (c) of par. 15. (b) The plaintiff at all times material was (i) the husband of Cynthia Joan Turner who at all such times was a staff member and;or a Board member of the aforesaid departments; (ii) admitted as a barrister and solicitor of the Supreme Court of Victoria; (iii) an adviser to a member or to members of the said departments in relation to the problems of the departments and in particular to each of the persons who was from time to time chairman of the Board of each department or who was head of the department; (iv) a close friend and associate of many of the Board members and staff members of the departments and in particular of the following - Professor W. M. Ball, Mr Justice J. V. Barry, Professor Peter Brett, Professor R. G. Brown, Professor D. Cochrane, Professor Z. Cowen, Mrs K. Fitzpatrick, Miss L. Hay, Professor H. A. J. Ford, Miss M. Kelso, Mrs L. O'Brien, Professor I. R. Maxwell, Professor, N. R. Morris, Sir George Paton, Miss G. A. Rennison, Mrs D. Sargeant, Mr. G. B. Sharp, Miss M. Williams, Dr. Lena Thomas, Dr. E. R. Trethewie. The plaintiff also( (v) held a part time lectureship in the Social Studies Department from 1st January 1956 until 31st December 1958; (vi) from time to time acted as spokesman for himself and for a group of staff members in making representations concerning the allegations of communist activities and of malpractice previously referred to; (vii) gave evidence to and advised the University and the University committee of enquiry which comprised the persons named in sub-par. (f) of par. 15 of the statement of claim in relation to the allegations aforesaid and to the action to be taken in reference to them; (viii) stated prior to 3rd May 1961 and thereafter from time to time to the University Council, to members of the University and to members of the public that the allegations of communist activity and of malpractice were unfounded. (c) The persons named in sub-par. (f) of par. 15 of the statement of claim enquired into allegations of communist activities and of malpractice in the Department of Social Studies and issued statements in or about December 1961 and thereafter from time to time to the University Council, to members of the University and to the public to the effect that there was no evidence of any communist conspiracy in the department and no evidence of any malpractice. (d) The following persons have not been at any material time communists: (i) the persons named in par. 15 (f) of the statement of claim; (ii) the plaintiff's wife; (iv) the persons, other than Geoffrey Bryce Sharp, who were from time to time staff members or Board members of the aforesaid Departments. (e) Geoffrey Bryce Sharp has at all times or at some material times been a communist. (f) The defendants and each of them at all times material held themselves out as anxious to determine the validity of their allegations of communist activities and of malpractice and as willing to withdraw any allegation which was not justified and held themselves out as willing to disclaim an intention to injure or to embarrass any innocent person where any publication was shown to have tendency to do so.

(g) The defendants refused prior to 15th December 1961, have from time to time thereafter refused, and have at all times failed, to withdraw all or any of the allegations in relation to the plaintiff made or implied in their publications and have so refused and failed to disclaim an intention in relation to the plaintiff that their publications should bear in relation to him the meanings as alleged in pars. 10, 11 and 15 of the statement of claim or other defamatory meaning." (at p77)

14. Upon the delivery of the fourth statement of claim the defendants, first, filed a notice of motion dated 17th December 1971 for the entry of judgment for the defendants in the action on the footing that no statement of claim conformable to the conditions of the said order had been served: and, second, before the motion came before the Court, "prevailed" upon the Prothonotary of the Court on 8th February 1973 to exercise powers given by O. 41, r. 1 to enter judgment for the defendants for failure on the part of the appellant to comply with the order of the Full Court of 19th October 1971. (at p78)

15. In March 1973 the appellant gave notice of motion to set aside the judgment for the defendants entered on 8th February 1973. In April 1973 the respondents' motion for judgment and the appellant's motion to set aside the judgment for the defendants came before the Supreme Court (Dunn J.). After argument, his Honour set aside the judgment signed on 8th February 1973, but on the respondents' motion ordered that the action stand dismissed and that there be judgment for the defendants. His Honour gave the appellant leave to appeal. (at p78)

16. The basis of his Honour's judgment was a construction of condition (b) of the Full Court's order of 19th October 1971 which would deny the appellant the ability in any wise to refer to the campaign or discussion mentioned in the condition even by way of particulars of his allegations that the publications on which he sued referred to him or bore the innuendoes which he laid. In other words, his Honour did not read the qualifying words of the condition as applicable to a reference to the campaign or discussion. Consequently, his Honour treated the serving of the fourth statement of claim as outside the leave given by the Full Court's order and exercised the power given by O. 27, r. 1, as upon default of a statement of claim. (at p78)

17. The appellant appealed to the Full Court whose members agreed with the construction and conclusion of Dunn J. The Court dismissed the appellant's appeal. In doing so, it said:
"Although a court is always loath to stop a litigant from proceeding to trial by invoking against him technical or adjectival rules of procedure, nevertheless where the litigant, as here, foolishly, and it may be contumaciously, ignores curial conditions to which he has given his express assent, then by his foolhardy conduct he has become the architect of his own misfortune in having his action summarily dismissed. We are constrained by the terms of the Full Court order which the appellant elected to accept, to agree with Dunn J. that by an insertion in the statement of claim of material which was prohibited, the appellant has brought about the dismissal of his action. In accordance with the order of the Full Court of October 1971, the action must stand dismissed." (at p78)

18. By this Court's leave the appellant now appeals against the Full Court's order. He challenges the construction placed upon the second condition of the leave to deliver a further statement of claim contained in the order of 19th October 1971 and the conclusion that the fourth statement of claim was in breach of that condition. He also challenges the propriety of the order dismissing the action and entering judgment for the defendants. (at p79)

19. There are two substantial matters to be resolved in this appeal. The first is the proper meaning of condition (b) contained in the Full Court's order of 19th October 1971: and the second is whether the fourth statement of claim is a breach of that condition properly construed. (at p79)

20. I have already concluded that the statement of claim is not in breach of the first of the conditions imposed by the Full Court. As to the proper construction of condition (b), I should first observe that in so far as importance is placed upon the appellant's acceptance of the condition contained in the order - and both the primary judge and the Full Court have done so - no significance can be given, in my opinion, to the punctuation found in the transcript of what the Court orally stated to the appellant: and, in any case, the comma after the words "previous pleadings" is, in my opinion, misplaced. Both "any reference" in the second line of the condition and the same expression in the third line are governed by the only verb in the positive portion of the condition, namely "shall not contain". It seems to me a grammatically unwarranted course to treat the two parts of what is in structure and sense one sentence as separate and unconnected sentences. The condition sets out in that one sentence what shall not be contained in the statement of claim. Consequently, with every respect to those who are able to form a different view, I can only read the qualification contained in the last four lines of the condition as applicable to the whole of that which is the subject matter of the sentence. The use of the plural, "such references", in the part qualifying the prohibitory words of the condition is apt grammatically to refer to both the "references" in the prohibition. Hearing the condition orally pronounced, the hearer, in my opinion, would so understand the qualifying words. (at p79)

21. But, apart from such considerations, I am unable to understand why any differentiation in the application of the qualifying words should have been intended. It seems to me that the Full Court rightly apprehended that the appellant was alleging a cause of action in defamation. It resolved, and again, in my opinion, rightly, that the use of the various publications, other than the three upon which suit was allowed to be brought, as prologomena to the statement of the causes of action was impermissible in point of pleading, whether or not in combination those publications were castigated as a campaign or described as a discussion. But their attempted use as facts which might aid the identification of the appellant as the person to whom the words sued upon referred, or as indicating or assisting to indicate the sense in which those words should be understood, is quite another matter. Even if one concluded, and I can well appreciate that it may be concluded, that the publications other than those sued upon, whether or not seen as an organized and integrated endeavour, could not possibly assist to establish either identification or innuendo, there would be no warrant for denying the appellant the ability to include these publications and their content as part of his particulars of defamation. On the construction of the condition favoured in the Supreme Court, it is clearly recognized that these publications can be included in the particulars. I see no reason why a reference to the nature and circumstances of these publications should be in any different case. A particular not expressed in an objectionable way cannot be struck out under the rules, in my opinion, simply because it can be seen that it does not particularize the cause of action or some material part of it. In an action for defamation the plaintiff is not required to include his particulars in and as part of his statement of his cause of action. But, where the defamatory words do not identify the plaintiff as their object, extrinsic facts may be used to make that identification. Again, where the plaintiff desires to claim a meaning for the words which of their nature they do not obviously bear, he may rely on facts extrinsic to the publication to show the meaning the words bear in the circumstances. In each instance he must particularize the extrinsic facts. It is for him to decide how he will endeavour to establish the identification and the innuendoes. His particulars, though included in the pleading so far as to enable objectionable matter in them to be struck out under O. 19, r. 27, are not to be pleaded to: it is, in my opinion, bad pleading to do so. The defendant by not canvassing the particulars does not admit them, nor does he admit their relevance to the establishment of the cause of action or any part of it. (at p80)

22. In the present case the appellant seems to have had the idea that the fact that defamatory assertions had been made about people with whom he worked or associated at times proximate to the publications on which he sued could form material upon which both his identification with latter publications and the innuendoes which he chose to lay could be established. Nothing I have said or yet will say in these reasons for judgment is intended to give the least encouragement to the appellant to think that by the fact and content of such publications he could support in any respect his cause of action in defamation. But I can see no reason why, though maybe misguided, he should be denied the opportunity to particularize the facts upon which he intends to rely to establish his identification with the words on which he sues and the innuendoes which he attributes to them. In my opinion, both in its natural grammatical sense and because of the considerations to which I have just referred, condition (b) on its proper construction did not preclude the appellant from referring to the said publications and to their nature and inter-relationships by way of particulars of identification and of innuendo. (at p81)

23. I turn now to the statement of claim. Paragraph 16 is expressed as a paragraph affording particulars and not as a paragraph expressing the causes of action or any part of t he causes of action on which suit is brought. It does no more than notify an intention to rely on the facts which, by reference to annexure "E" it particularizes. In my opinion, the statement of claim does not offend the conditions of the order. (at p81)

24. However, parts of annexure "E" are objectionable as falling within the scope of O.19,r.27. In my opinion, the description of the articles and comments as "constituting a continuing discussion and purporting to comprise and being understood to comprise a campaign against alleged communist activities in the university" and the succeeding sentence ought not be included in a particular of any part of the cause of action in this case. Nor is it proper that the alleged innuendoes attributed to those publications should appear as part of such a particular. Further, in my opinion, par. (f) of this annexure does not constitute in form or in substance such a particular. (at p81)

25. I would therefore set aside the judgment directed by Dunn J. to be entered for the defendants as well as his order dismissing the action. (at p81)

26. I think it convenient to do now what the Full Court could have done in the appeal from the order of Dunn J., that is to say, remove from the documents any matters which would fall within the language of O. 19, r. 27. I would therefore strike out of annexure "E" the passages to which I have referred. (at p81)

27. I would allow the appeal but make no order as to costs. The order of the Full Court should be set aside, the appeal to that Court allowed with no order as to costs and the order of Dunn J. dismissing the appellant's action and directing judgment to be entered for the respondents set aside and in lieu thereof order that the motion for judgment be dismissed with costs. (at p81)

McTIERNAN J. I agree that the orders which the Chief Justice proposes in his reasons for judgment in this case should be made, and I concur in his Honour's reasons for judgment. (at p82)

MENZIES J. The appellant, who appeared in person as he had done in earlier proceedings, had, at one time, been a Reader in Law in the University of Melbourne. On 9th May 1967 he commenced an action for damages for libel against the respondents in respect of articles published in the Bulletin in the years 1961, 1962 and 1965 and a statement to shareholders of the publishers in 1967. A first statement of claim was struck out by Master Brett. A second statement of claim, delivered by leave, was struck out by Master Collie who gave leave to deliver a further statement of claim by 19th June 1970 and ordered that, in default, the action be dismissed for want of prosecution. Upon appeal Stephen J., as a judge of the Supreme Court, upheld the order striking out the statement of claim and gave reasons at length for his decision. Those reasons showed that, apart from an abandonment of causes of action based upon certain publications by reasons of their non-inclusion in his statement of claim - R.enowden v. McMullin (1970) 123 CLR 584 - his Honour regarded the statement of claim as tending to embarrass the fair trial of the action because in it the plaintiff attempted to rely upon what is described as "the said campaign", being a campaign not against the plaintiff himself but against communist and subversive activities in Australian universities, including the University of Melbourne and centred upon two departments within that university and the persons working in those departments, including the wife of the plaintiff. His Honour said:
"The plaintiff, having asserted the existence of such a campaign in par. 9, sets out in par. 10 certain articles and letters published by the defendants and said to form part of it containing allegations not in any specific way directed at the plaintiff as an individual and not pleaded as being of themselves defamatory of him, but directed generally at those persons, for the most part unidentified, who, it is said, are engaged in those activities.
The plaintiff then, by par. 12, attributed to the defendants' articles and letters meanings involving the making of ten specified allegations against the persons so engaged, ranging from the undermining of proper teaching policies to espionage, sabotage and blackmail." (at p82)

2. The statement of claim then, in pars. 13.564, alleged eight defamatory statements. As to these statements his Honour said:
"He deals with each of them seriatim, setting out the text of the statement, frequently following that with additional facts designed to show some connection or identify between him and the persons defamed, and in some cases with allegations of innuendoes. The general, although not universal, pattern of pleading is, before then passing from one alleged libel to the next, to first assert that it formed part of the said campaign and that in the context of the campaign it referred to and constituted statements derogatory of the plaintiff . . ."

3. His Honour then said:

"It is, of course, manifest that whereas the articles and letters complained of make quite specific and serious allegations concerning named individuals, only four of them refer directly to Mr Turner, and he is not the main target for attack. The defendants contend that the form of pleading in relation to the alleged campaign results in a statement of claim which is embarrassing and which they should not be required to plead to; in particular they contend that pars. 9 and 12 are irrelevant to any cause of action in defamation and prejudice the fair trial of the issues raised by the preceding paragraphs.

The objection is basically that the twenty-two articles identified in par. 9 and portions of some of which are set out in par. 10 are not, except to the extent that some appear again later in the pleadings as the eight defamatory articles or letters, alleged to be, in themselves, defamatory, and their inclusion improperly widens the scope of inquiry and of matters in issue and not only makes the defendant's task in defending the action excessively onerous but at the same time will prevent the fair trial of the action. If the defendants are to plead to these matters by way of positive defence it is said with much justification that the range of facts to be traversed at the trail will enormous, the matters which will be the subject of justification and the like being very much enlarged, and the relevance of all this to the eight libels alleged will be minimal. It is said, further, that the result, and one which in view of certain paragraphs of the first statement of claim, may be thought to be not unintended by the plaintiff, will be to turn a libel action into a far reaching inquiry of prolonged duration into communist and anti-communist activities in Melbourne University in 1961 and the following years, an inquiry having minimal reference to the alleged defamation of the plaintiff." (at p83)

4. His Honour upheld the defendants' objection and criticism, and, after referring to minor objections, said: (at p83)
"The parties at the hearing agreed that if I should arrive at the foregoing conclusion the proper course would be to strike out the whole statement of claim. This I propose to do, leaving the plaintiff to re-plead if he sees fit. This appears to me to be the proper course in view of the all-pervading effect of the passages in the statement of claim which I consider to be improper."

5. His Honour, furthermore, dealt with what he has described as "ancillary aspects" with a view, no doubt, of assisting in the formulation of a fresh statement of claim. He added: (at p84)
"Having concluded that the statement of claim should be struck out, I do not propose to say more about the present pleading, nor will I deal with each of the very numerous criticisms made by counsel for the defendants and not referred to be me. The plaintiff is no doubt fully seized of these, and he or his legal advisers may choose to take notice of them in any further statement of claim that is to be drawn." (at p84)

6. The plaintiff delivered a fresh statement of claim, the third, and the defendants, alleging that the document was not a statement of claim within the leave granted, sought dismissal of the action for want of prosecution or for judgment for the defendants under O. 25, r. 4. This application was heard by Stephen J. who recounted events as follows: (at p84)
"This action first came before me last year on appeal by the plaintiff from an order of a Master striking out the statement of claim which was delivered on 25th June 1969, and which I shall hereafter refer to as the second statement of claim. In my judgment delivered on 23rd December 1970, I gave my reasons at some length for dismissing that appeal with costs and striking out the second statement of claim. On 4th February 1971, I dismissed the defendants' cross-appeal seeking dismissal of the action for want of prosecution. I gave leave to the plaintiff to deliver a further amended statement of claim on or before 18th March 1971, the defendants to be at liberty to apply for an immediate order dismissing for want of prosecution if such an amended statement of claim was not delivered on or before that date, that is 18th March 1971. I also granted leave to the plaintiff to appeal from the order dismissing his appeal from the Master's order. The plaintiff did not, in the event, appeal but instead delivered a further, that is the third, statement of claim and did so within the time limited and thereafter the defendants issued the present summons. The defendants say that the third statement of claim is substantially the same document as that struck out by Master Collie and that it has been delivered in defiance of my rulings on the second statement of claim and, with minor exceptions, without any acknowledgement of the matters upon which I ruled after the quite prolonged hearing. Accordingly it is said to be an abuse of the process of the court in the circumstances and it is said the action should not be allowed to proceed further but rather that I should now finally dispose of the action so as to put an end to the harassment of the defendants by the plaintiff. The plaintiff, who has, as heretofore, appeared in person, agrees substantially with Mr McPhee that the third statement of claim, is in most relevant respects similar to the second statement of claim but gives his reason for delivering a repetition of much which I had already ruled to be defective pleading the fact that he did not accept the correctness of that ruling." (at p85)

7. His Honour, having accepted the plaintiff's explanation for having delivered a third statement of claim in substantially the same form as the second statement of claim, allowed an amendment of the summons and thereupon struck out the third statement of claim for the same reasons as those for striking out the second statement of claim. His Honour was not asked to give leave to deliver a further statement of claim, the plaintiff having indicated that an appeal was proposed. An appeal was instituted to the Full Court. This appeal was dismissed on 19th October 1971. The Full Court, in deciding that the third statement of claim was rightly struck out, said: (at p85)
"Although His Honour accepted the plaintiff's explanation that it had not been delivered contumaciously, nevertheless, its delivery plainly constituted an abuse of process, for the document repeated, substantially without alteration, the provisions of the second statement of claim although that statement of claim had been held to be defective and had been struck out on that ground by the very order which gave leave to deliver the third statement of claim."

8. But the Full Court was then faced with the problem of the course to be followed. The Court said: (at p85)

"Ought this Court then make an order giving leave to the plaintiff to deliver a further statement of claim? Bearing in mind the observations made by Stephen J. as to the existence of a cause of action and as to the absence of intentional want of prosecution it would seem proper in all the circumstances that the plaintiff should be permitted to deliver a further statement of claim. Upon the whole, moreover, it would seem preferable for this Court to deal with the matter rather than put the parties to the expense of a separate application. The Court therefore is prepared to make an order giving such leave provided that terms are attached which will prevent injustice to the defendants. The appropriate conditions for this purpose would appear to be these: (1) That the statement of claim shall not make any claim in respect of any publications other than those referred to in the previous pleadings as the Dallinger letter, the Ian Turner letter and commentary and the Statement to Shareholders; (2) That the statement of claim should not contain any reference to 'the campaign' or, as it was also called, 'the discussion', which was referred to in previous pleadings, nor any references to publications other than the three already mentioned unless such references are made only in particulars of facts by reason of which an innuendo or a reference to the plaintiff is alleged to arise from one of the three publications mentioned in (1) above; (3) That failing delivery by the plaintiff of a statement of claim complying with these conditions within six weeks from the date of this Court's order the action shall stand dismissed. It may be observed that the three publications specified in (1) above are those in which the plaintiff is named.

If the plaintiff does not desire that an order should be made on those terms, then he will be left by the Court to initiate such proceedings, if any, as may be advised for any further prosecution of the action." (at p86)

9. The Chief Justice then asked the plaintiff whether he wished to take the order on these terms. The plaintiff said, "Yes, if your Honour pleases". The formal order of the Full Court, so far as relevant, was that the plaintiff's appeal be dismissed and that he have leave to deliver a further statement of claim subject to conditions as already stated. (at p86)

10. It is to be observed that the choice given to the plaintiff was not to take the order offered by the Full Court or to have the action dismissed. Had the plaintiff declined to take the order offered the appeal would simply have been dismissed. The plaintiff could then, had he wished to do so, have drafted a proper statement of claim and sought the leave of a Judge for its delivery out of time. He chose an immediate grant of leave upon conditions. (at p86)

11. The plaintiff, pursuant to the leave granted on conditions, delivered a further statement of claim, the fourth, which contained par. 16 as follows:

"16. In establishing that the publications comprised in Annexures 'A', 'C' and 'F' referred to the plaintiff and bore the meanings in relation to him as alleged in pars. 10, 11 and 15 hereof the plaintiff will rely on the facts and matters referred to in the said publications, and on the context of other publications of the defendants, and of correspondence and of statements referred to in the publications last and previously mentioned, and will rely in particular on the facts and matters set out in the Annexure to this statement of claim marked 'E' in so far as such facts and matters existed at the date of the publication in question and on the knowledge on the part of persons to whom the said publication comprised in annexures 'A', 'C' and 'F' were made, of each such fact or matter severally or of each such fact or matter in combination with other or others of such facts or matters."

Annexures "A", "C" and "F" were copies of the publications referred to in the first condition of the Full Court's order. Annexure "D" was a list of twenty-one issues of the Bulletin running from 15th March 1961 to 17th April 1965. Annexure "E" was, in substance, the matter which Stephen J. had decided was objectionable. Without doubt it was a repetition that there had been a campaign of the character referred to in the second condition of the Full Court order. The defendants thereupon, judging that the second condition of the order had been broken, entered judgment. The plaintiff applied by summons to set aside this judgment and the defendants by motion applied for judgment in their favour but made no application under O. 19, r. 27 of the Rules of the Supreme Court. These applications came on before Dunn J. who set aside the judgment which had been entered but finding a breach of the second condition of the Full Court order and relying upon that part of the Full Court order providing for dismissal of the action, ordered "that the plaintiff's action stand dismissed and that there be judgment for the defendants". (at p87)

12. This Court refused applications by the plaintiff for special leave to appeal from the order of Dunn J. and from the order of the Full Court made on 19th October 1971. (at p87)

13. The plaintiff appealed to the Full Court of the Supreme Court from the order of Dunn J. on the ground "that the learned judge was wrong in holding that the plaintiff had committed breaches of the conditions contained in the order of the Full Court of the Supreme Court dated the 19th day of October 1971 and was wrong in holding that the action stood dismissed under the terms of the said order". The Full Court dismissed that appeal. The Court did not have before it any application under 0. 19, r. 27. From its order this appeal is brought by special leave upon the following grounds:

"1. That the said Court was wrong in holding that the Full Court of the Supreme Court of Victoria by its order of 19th October 1971 had imposed a condition that the particulars provided in the Statement of Claim should not contain any reference to the campaign or discussion previously pleaded. 2. That the said Court was wrong in holding that the appellant had committed a breach of a condition imposed on him by the said last mentioned order. 3. That the said Court was wrong in holding that the action stood dismissed under the terms of the said last mentioned order."

There is no application under O. 19, r. 27 before the Court. (at p87)

14. At the hearing of the appeal the plaintiff requested the Court to consider reviewing the order of the Full Court of 19th October 1971. (at p87)

15. A starting point in considering this appeal is the power of the Court, upon an application made to it under O. 19, r. 27 of the Rules of the Supreme Court, to strike out a statement of claim in which objectionable matter is so mingled with other matter that the pleading as a whole may tend to embarrass the fair trial of the action, notwithstanding that a cause of action may be spelled out of the pleading as a whole. It was decided as long ago as 1878 in Davy v. Garrett (1878) 7 Ch D 473 that such a statement of claim ought to be struck out and, so far as I can see, that decision of the Court of Appeal has never been questioned. The practice is well settled in the Supreme Court of Victoria, as the various orders made in this action show, and it is a practice which has been followed in this Court. (at p88)

16. An order striking out the whole of a statement of claim because, as it stands, it would tend to embarrass the fair trial of the action, is usually accompanied with leave to deliver a further statement of claim and again, in this action, such leave was given unconditionally on two occasions. It is clear, however, that the Full Court came to the conclusion that the leave given on previous occasions had been abused and the plaintiff was persisting in an attempt to use an action for damages for libel of himself as a means of inquiry into the merits of what he alleged was a campaign by the defendants against communism and subversion in Australian universities and in particular in two departments of the University of Melbourne. To attempt this was clearly enough an abuse of the process of the court and the Full Court made an order designed to allow the plaintiff's cause of action for libel to be tried by permitting the delivery of a further statement of claim while, at the same time, preventing (at p88)

17. I consider that such an order was within the inherent jurisdiction of the court. Indeed, the point had been reached where it was within the discretion of the Full Court to put an end to the action. The Full Court, however, did not impose upon the plaintiff the conditional order which it made for leave to deliver a further statement of claim. It gave the plaintiff the choice of taking the order proposed or being left "to initiate such proceedings, if any, as may be advised for any further prosecution of the action". The plaintiff, as has been seen, chose to take the order as proposed by the Full Court. (at p88)

18. The plaintiff, however, was, it seems, still determined to make his action the vehicle for an inquiry into the merits of the campaign already referred to, and this he then sought to do through par. 16 and annexure "E" of the statement of claim. The appendix is, of course, part of the statement of claim and as such, but only as such, could be the subject of an order under O. 19, r. 27. It plainly referred to the campaign or discussion referred to in condition 2 of the Full Court order. The simple question then is whether those references were permitted under the final words of condition 2, viz. "unless such references are made only in particulars of facts by reason of which an innuendo or reference to the plaintiff is alleged to arise from one of the said three publications. . ." (at p89)

19. I am satisfied that annexure "E" was not permitted by virtue of those words. It is not properly described as "particulars of facts". The plaintiff himself recognized this in par. 16 when he referred to annexure "E" as setting out "facts and matters". Some of the matters included therein which are not facts are statements; for example, that twenty-one publications of the Bulletin listed in annexure "D" constituted a continuing discussion purporting to comprise and being understood to comprise a campaign against alleged communist activities in the University of Melbourne. Furthermore, the allegation following that statement is hardly to be described as particular of fact. It is:

"By these publications the defendants meant and were understood to mean that there were persons within each of the said departments who were communists and who were guilty of crimes and other malpractices and more particularly guilty of the conduct described in the following subpars. of the statement of claim: sub-pars. (a) to (o) of par. 10; sub-pars. (b) to (d) par. 11 and sub-pars. (b) and (c) of par. 15."

Furthermore, much of what appears in annexure "E" cannot be described as "particulars of facts by reason of which an innuendo or reference to the plaintiff is alleged to arise" from one of the three defamatory statements alleged. For instance, it is alleged that the wife of the plaintiff was "a close friend and associate of many of the Board members and staff members of the departments and in particular of the following - Professor W. M. Ball, Mr. Justice J. V. Barry, Professor Peter Brett, Professor R. G. Brown, Professor D. Cochrane, Professor Z. Cowen, Mrs. K. Fitzpatrick, Miss L. Hay, Professor H. A. J. Ford, Miss M. Kelso, Mrs. L. O'Brien, Professor I. R. Maxwell, Professor N. R. Morris, Sir George Paton, Miss G. A. Rennison, Mrs. D. Sargeant, Mrs. G. B. Sharp, Miss M. Williams, Dr. Lena Thomas, Dr. E. R. Trethewie". Furthermore, the statement that Sir Alistair Adam, Sir George Paton, Professor Sherbon Hills and Dr. Gilray were not communists cannot be regarded as falling within the final words of the second condition of the Full Court order. (at p89)

20. Having read what Stephen J. said about the second statement of claim and having read the third and fourth statements of claim, I am not in doubt that the plaintiff is still attempting, by his action for damages for libel in respect of three publications, to clear the names of others from the taint of subversion or communism which he conceives arises from a campaign by the defendants involving inter alia the publication of twenty-one articles in the Bulletin. This amounts, as the Full Court decided, to an abuse of the process of the court and is a breach of the condition designed to prevent it. (at p90)

18. I have, up to the present, dealt with the question whether the fourth statement of claim did contain references prohibited by the second condition of the order of the Full Court of 19th October 1971 upon a somewhat broader basis than that upon which that question was decided by Dunn J. and by the Full Court. The reason I have chosen to do so is because the appellant does suggest that when he accepted the conditional order offered to him by the Chief Justice he did so upon an understanding of what was proposed different from the construction eventually adopted by the Full Court. There is, however, no room for any misunderstanding in relation to the matters upon which I have already based my conclusion that the statement of claim did contain prohibited references. I should say, however, that I agree with Dunn J. and with the Full Court that, upon its proper construction, the "unless" clause in the condition related only to the matter immediately preceding it, i.e. references to publications other than the three mentioned and not to a reference "to the campaign or discussion referred to in the previous pleadings". The question whether such a campaign could be, in any sense, relevant to the plaintiff's action for damages for libel of himself was central to the decisions of Dunn J. and of the Full Court, and I read the condition as prohibiting absolutely any reference to something unconnected with the plaintiff's cause of action. (at p90)

19. It appears to me that, had Stephen J. reached the conclusion that the third statement of claim had been delivered contumaciously, he would have put an end to the action at that point. The Full Court plainly considered that he would have been entitled to do so. I am of the same opinion. I cannot but regard the fourth statement of claim as having been delivered contumaciously, not in any sense that the plaintiff sought deliberately to defy the court but that, by reason of the strength of his feelings that the falsity of the defendants' campaign should be exposed in the court and that the law should make provision for this, he persisted in an attempt to expose that falsity notwithstanding the decisions that his action for libel could not be made the occasion for so doing. (at p91)

20. I would therefore dismiss the appeal. (at p91)

MASON J. I agree with the reasons of the Chief Justice for allowing the appeal and with the orders he proposes. (at p91)

JACOBS J. This is an appeal from an order of the Full Court of the Supreme Court of Victoria dismissing an appeal from Dunn J. wherein he ordered that the plaintiff's action stand dismissed and that there be judgment for the defendants. The plaintiff, the present appellant, commenced proceedings on 9th May 1967 and delivered a statement of claim on 21st June 1968. That was a statement of claim of 123 paragraphs and 16 long annexures. It was a narrative rather than a pleading and after the long narration of events, some appearing to be relevant and some not, the plaintiff alleged injury to his character credit and reputation and claimed damages and an injunction. (at p91)

2. This statement of claim was struck out by Master Collie and it was ordered that unless the plaintiff should deliver a statement of claim on or before 30th June 1969 the action should stand dismissed for want of prosecution. (at p91)

3. A second statement of claim was delivered on 25th June 1969. This was still a very long discursive document but at least it was reduced in size from the first one. It was shorter by more than half. However, three of the publications relied on as defamatory were not included in the original statement of claim although these were identified in the endorsement to the writ. Master Collie made an order striking out the whole of this second statement of claim and dismissed the action for want of prosecution unless a substituted statement of claim was delivered on or before 19th June 1970. The plaintiff appealed to a judge of the Court and the appeal was heard by Stephen J. The defendants also appealed upon the ground that the document could not be described as a statement of claim so that there was no compliance with Master Collie's earlier order and therefore the action stood finally dismissed. This appeal was also heard by Stephen J. who held that the document delivered did qualify to be described as a statement of claim. He found that the document exhibited features objectionable as a matter of good pleading. He dealt with the powers of the Court under O. 19, r. 27, O. 25, r. 4 and O. 27, as well as with the inherent power of the Court to prevent an abuse of its own process. He contrasted the power of the Court to ensure that the rules of pleading be observed with the power under O. 27 to dismiss for want of prosecution and held that there could be no dismissal for want of prosecution where the vice was not the failure to plead but the manner of pleading. He declined to find that no reasonable cause of action was disclosed or that the cause of action should necessarily be described as frivolous or vexatious or the proceedings an abuse of process. Accordingly, he held that no stay or dismissal of the action could be ordered. (at p92)

4. Rather than attempt a piecemeal exclusion of the objectionable matter and in conformity with the wishes of the parties he struck out the whole of the second statement of claim. He gave leave to deliver a further statement of claim on or before 18th March 1971 and gave leave to the defendants to apply for an immediate order dismissing the action for want of prosecution if such a statement of claim was not delivered by that date. (at p92)

5. A third statement of claim was delivered on 18th March 1971. This document was not much different from the second statement of claim. The defendants applied for dismissal for want of prosecution and for dismissal or judgment under O. 25, r. 4. The plaintiff gave an explanation for apparently ignoring the conclusions of the learned judge in his earlier judgment and this explanation was accepted. Stephen J. gave further reasons why he should not either dismiss for want of prosecution or dismiss under O. 25, r. 4. Under an amendment to the summons he struck out the third statement of claim under O. 19, r. 27. As an appeal by the plaintiff was envisaged he did not give leave to deliver a further statement of claim. He gave leave to appeal and to cross-appeal. (at p92)

6. The plaintiff appealed and the defendants cross-appealed. The Full Court dismissed the appeal and the cross-appeal. The judgment of Smith J., which was the judgment of the Court, upheld Stephen J. in his view on the second statement of claim that three of the publications could not be relied on as they were not relied on in the first statement of claim: Renowden v. McMullin (1970) 123 CLR 584 . It also upheld Stephen J. in holding that the impugned pleading contained objectionable matter which should be struck out. Smith J. stated:
". . . the second statement of claim contained lengthy provisions alleging that a large number of separate statements had been published by the defendants which were not alleged to have been defamatory of the plaintiff but which were alleged to have been part of a campaign against communism in Australian universities. It was further alleged that from these publications ten different innuendos arose reflecting upon some unidentified persons in a department of the Melbourne University. Furthermore, the publications so alleged to constitute what was called 'the campaign' included some of the libels sued upon. His Honour held that the inclusion of all this material relating to 'the campaign' rendered the second statement of claim defective in form and was likely to prejudice the fair and expeditious disposal of the action. In the third place his Honour held that the inclusion of the allegations relating to 'the campaign' was open to the additional objection that it constituted an attempt to attribute a defamatory meaning or a reference to the plaintiff to the eight alleged libels, or some of them, where those libels did not, either expressly or by implication, convey any such meaning or contain any such reference. And his Honour held, on the authority of the decision of the Court of Appeal in Morgan v. Odhams Press Ltd. (1970) 2 All ER 544; (1970) 1 WLR 820 that this method of establishing a defamatory meaning or a reference to the plaintiff was not admissible. Having regard to the decision of the House of Lords in that same case (1971) 2 All ER 1156; (1971) 1 WLR 1239 , this third reason given by his Honour calls for reconsideration, but this circumstance does not impair the force of the first two reasons stated by his Honour". (at p93)

7. Having also upheld Stephen J. in accepting the plaintiff's explanation of his reason for delivering the third statement of claim in much the same form as the second, Smith J. said:

"Ought this Court then make an order giving leave to the plaintiff to deliver a further statement of claim? Bearing in mind the observations made by Stephen J. as to the existence of a cause of action and as to the absence of intentional want of prosecution it would seem proper in all the circumstances that the plaintiff should be permitted to deliver a further statement of claim. Upon the whole, moreover, it would seem preferable for this court to deal with the matter rather than put the parties to the expense of a separate application. The Court therefore is prepared to make an order giving such leave provided that terms are attached which will prevent injustice to the defendants. The appropriate conditions for this purpose would appear to be these: "(1) That the statement of claim shall not make any claim in respect of any publications other than those referred to in the previous pleadings as the Dallinger letter, the Ian Turner letter and commentary and the statement to shareholders. (2) That the statement of claim should not contain any reference to 'the campaign' or, as it was also called, 'the discussion', which was referred to in previous pleadings, nor any references to publications other than the three already mentioned unless such references are made only in particulars of facts by reason of which an innuendo or a reference to the plaintiff is alleged to arise from one of the three publications mentioned in (1) above; (3) That failing delivery by the plaintiff of a statement of claim complying with these conditions within six weeks from the date of this Court's order the action shall stand dismissed.

It may be observed that the three publications specified in (1) above are those in which the plaintiff is named." (at p94)

8. The plaintiff was asked by Winneke C. J. if he wished to take an order on those terms and he replied in the affirmative. The order was made. (at p94)

9. Then the fourth statement of claim was delivered on 19th October 1971. It was a much shorter document, only seventeen paragraphs. It alleged as defamatory only the three publications referred to in the Full Court order but it had a number of annexures. Some of these set out the alleged defamatory matter but pars. 12 and 16 of the statement of claim and annexures "D" and "E" were not of this character. Paragraph 12 was as follows:
"The plaintiff has at all times in this action desired to plead that other publications of the defendants referred to in the endorsement to the writ were defamatory of him and would so plead in this statement of claim were it not for the condition imposed by the order made by the Full Court of the Supreme Court on 19th October 1971." (at p94)

10. Paragraph 16 of the statement of claim stated:
"In establishing that the publications comprised in Annexures 'A', 'C' and 'F' referred to the plaintiff and bore the meanings in relation to him as alleged in pars. 10, 11 and 15 hereof the plaintiff will rely on the facts and matters referred to in the said publications, and on the context of other publications of the defendants, and of correspondence and of statements referred to in the publications last and previously mentioned, and will rely in particular on the facts and matters set out in the annexure to this statement of claim marked 'E' in so far as such facts and matters existed at the date of the publication in question and on the knowledge on the part of persons to whom the said publications comprised in Annexures 'A', 'C' and 'F' were made, of each such fact or matter severally or of each such fact or matter in combination with other or others of such facts or matters." (at p94)

11. Annexure "E" contained pars. (1) to (g). In par. (a) it referred to annexure D though this document was not referred to in the body of the statement of claim. Annexure D consisted of references to issues with pages and dates of the Bulletin. One of these references was a writing headed "A Long Campaign" and these words were set out in the list under item (g) being the Bulletin dated 17th May 1961. (at p95)

12. Paragraph (a) of Annexure "E" was as follows:
"The defendants in the issues of The Bulletin on the dates and pages set out in Annexure to the statement of claim narked 'D' wrote and published in relation to the University of Melbourne and in particular to the Department of Social Studies and Criminology thereat and to the staff members and Board members of those departments or some of them, articles and comments constituting a continuing discussion and purporting to comprise and being understood to comprise a campaign against alleged communist activities in the university. By these publications the defendants meant and were understood to mean that there were persons within each of the said departments who were communists and who were guilty of crimes and other malpractices and more particularly guilty of the conduct described in the following sub-paragraphs of the Statement of Claim: - sub-pars. (a) to (o) of par. 10; sub-pars. (b) to (d) of par. 11; and sub-pars. (b) and (c) of par. 15." (at p95)

13. After this statement of claim was filed, namely, on 17th December 1971, the defendants moved for an order that judgment be entered for the defendants upon the ground that the statement of claim did not comply with the conditions contained in the order of the Full Court. The basis of this application was that there had been a non-compliance with the second condition in that the statement of claim contained reference to the campaign or discussion referred to in the previous pleadings. This application was acceded to by Dunn J. when the summons came before him and the appeal was dismissed by the Full Court. Special leave to appeal was granted by this Court. Hence this appeal. (at p95)

14. It should be mentioned that while the motion was pending in the Supreme Court the defendants on 8th February 1973 had judgment entered on the order of the Full Court as a "self executing" order. Dunn J. determined that judgment should not be entered except on a motion for judgment. He therefore set aside the judgment entered but made the order for judgment to which I have referred. (at p95)

15. The basis on which the entry of judgment was sought before Dunn J. was that par. 12, par. 16, annexure "D" and par. (a) of annexure "E" contained reference to the campaign or discussion referred to in the earlier pleadings. Dunn J. found this basis established in all particulars and ordered that the action stand dismissed. He held that the reference to other publications in par. 12 was a breach of the condition. He also construed the second condition to mean that the proviso or exception in its last clause applied only to the words "any references to publications other than the three abovementioned" and did not apply to the words "any reference to 'the campaign' or 'discussion' referred to in the previous pleadings". (at p96)

16. The plaintiff appealed to the Full Court upon the ground that Dunn J. was wrong in holding that the plaintiff had committed breaches of the conditions contained in the order of the Full Court dated 19th October 1971 and was wrong in holding that the action stood dismissed under the terms of the said order. The Full Court dismissed the appeal. It agreed with the construction of the condition given to it by Dunn J. It expressed no opinion on whether the insertion of par. 12 was a non-compliance with the condition. (at p96)

17. There is a fundamental difficulty springing from the course of events outlined by me in ordering that the plaintiff's action be dismissed or stand dismissed. When Stephen J. in his order of 4th February 1971 struck out the whole of the second statement of claim he did so, as I have said, in conformity with the wishes of the parties and rather than attempt a piecemeal excision of objectionable matter. He made it clear that there was no power to dismiss the action because there was a pleading delivered which disclosed a cause of action. He allowed time for delivery of a further pleading and upon fixing that time he had power to order that if the time be not complied with the action should stand dismissed, or that the plaintiff might forthwith apply for dismissal. All this was within the rules of procedure. When he struck out the third statement of claim he fixed no further time for pleading because an appeal was envisaged. When the matter came before the Full Court and the appeal was dismissed the Full Court proceeded to make orders for further pleading but instead of simply fixing a time and ordering that on failure to file a fresh statement of claim within that time the action should stand dismissed it ordered that on failure to file a statement of claim not only within a time fixed but also complying with the stated conditions the action should stand dismissed. I have already quoted the relevant passage. The plaintiff was, in the words of Dunn J., "given the option of taking an order in the proposed form or having his action dismissed". But for the reasons elaborated by Stephen J. the action could not be dismissed. A statement of claim had been filed which disclosed a cause of action. Although the plaintiff accepted an order on the terms proposed by the Full Court, he only accepted it as the lesser of what he regarded as two evils. Indeed he sought special leave to appeal from it to this Court but this leave was refused. (at p96)

18. The order striking out the statement of claim was thus not a consent order and furthermore it was an interlocutory order. Being an interlocutory order it was able to be reviewed by the Court at any time before the final disposal of the action. The power of the Court so to review it continued throughout the hearing of the subsequent motion to dismiss however unlikely it was that the exercise of that power would affect the result. But if, for instance, the order imposing the conditions had been made by a single judge and no leave to appeal were granted, the Court particularly the Full Court, on the subsequent application, would need to review the procedures adopted on the earlier application. Of course, if no more than the exercise of a discretionary power were involved it would be unlikely that the Full Court would upset the earlier order. However, if the order was erroneous in law it would be bound to pay heed to that fact. So here the appellant is in my opinion entitled, as he has done, to ask this Court to review the correctness of the earlier interlocutory order which imposed the conditions and the consequences of a failure to observe them. (at p97)

19. Any order of the Court consequential upon the striking out of the statement of claim had to be an order which took account of the fact that the statement of claim disclosed a cause of action. The order made was not a simple time order with consequential dismissal if the time was not adhered to. It went beyond that. It is not sufficient now to look only at the conditions imposed in order to see whether the new statement of claim complied with those conditions. The real question is whether the original order was one upon which the Supreme Court could validly order and declare that the action stood dismissed. In my opinion the power of the Court to order that the action stand dismissed was no greater upon non-compliance with the conditions than upon striking out the third statement of claim. Since the third statement of claim disclosed a cause of action the proper course was either to re-examine it and strike out the defective material or to strike out the whole of the fourth statement of claim with leave to re-plead or to strike out the defective material in the fourth statement of claim. (at p97)

20. In my opinion there is no power to dismiss an action when a statement of claim which discloses a cause of action is struck out because of defects in the form of pleading. This cannot be done directly and it cannot be done indirectly by inposing conditions relating to the form of pleading, breach of which will result in dismissal of the action. Where the form of pleading is defective the Court can certainly strike it out entirely and is not bound to reframe if for the plaintiff's benefit. But when it does so, leave to remake it must be given, if leave is necessary. In Cashin v. Cradock, Bacon V.C. said (1876) 3 Ch D 376, at p 377 :

"It is not for me to point out to the plaintiff how he might frame his statement of claim if he has any cause of complaint against the defendants. If he does not take advice, he must run the risk of acting upon his own judgment. But it is my plain duty not to permit the practice of this Court to be made an instrument of oppression, and I think that I should oppress the defendants grievously if I suffered them to be called upon to answer such a statement as this. The statement is unintelligible, and inexcusable in many respects; it is incoherent; there are inconsistencies between asking for a specific performance of the contract, and the enforcement of the consequences of the non-execution of a decree in which that contract was involved. It would be impossible to deal with such a case as the plaintiff states. It is a mercy to him not to permit such a statement to remain upon record. The consequence of its remaining would most likely be utter defeat to the plaintiff, even if he has any right claim. All that I can do is to direct this statement to be struck off the records of the Court. At the same time, I cannot withdraw from the plaintiff, and I will not withdraw from him the right to make another statement if he has cause of complaint."

The judgment was affirmed in the Court of Appeal (1876) 3 Ch D, at p 378 . A time limit may be fixed but that is under a different rule. The Court can control its own proceedings but it cannot do so at the price of a defeat of the plaintiff's cause of action. It can order that the offending matter be not pleaded and disobedience to that order will be contempt of the Court. It can stay the proceedings until an undertaking is given not to plead the offending matter. Breach of that undertaking will be contempt. But the action remains on foot. I am therefore of the opinion that the order conditionally dismissing the action was invalid and must of necessity be reviewed. (at p98)

21. I wish to add that I am also of the opinion that the condition alleged to have been broken should be construed so that the proviso governs both of the provisions and not the second provision alone. I agree with the reasons of Barwick C.J. in this regard. The two provisions deal with exactly the same subject matter, namely, the series of publications in the Bulletin. In those publications the "campaign" and "discussion" are referred to. They are the source of these words. There is no other campaign or discussion. The purpose in the order of the Full Court of referring to the campaign or discussion, as well as to the series of publications, appears to me to have been in order to make it clear that the statement of claim should refer neither to the series of publications nor to a summation or description of them as a campaign or discussion except for the purpose allowed by the proviso. (at p99)

22. I agree with the order proposed by the Chief Justice.

Orders

Appeal allowed.

Order of the Full Court of the Supreme Court of Victoria made on 21st August 1973 set aside, and in lieu thereof order that the appeal to that Court be allowed.

Order of Dunn J. made on 30th April 1973 set aside, and in lieu thereof order that the respondent's motion for judgment be dismissed with costs.

Order that the appellant's Statement of Claim of 26th November 1971 be amended by striking from Annexure "E" thereof;
(i) the words in par. (a) "constituting a continuing discussion and purporting to comprise and being understood to comprise a campaign against alleged communist activities in the university";
(ii) the last sentence of par. (a);
(iii) all of par. (f).

Matter remitted to the Supreme Court of Victoria for further proceedings.