Vincent v Maxwell

[1989] TASSC 99

B21/1989

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Vincent v Maxwell [1989] TASSC 99; B21/1989

PARTIES:  VINCENT
  v
  MAXWELL

FILE NO:  58/1989
DELIVERED ON:  8 June 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B21/1989
Number of paragraphs:  16

Serial No B21/1989
File No 58/1989

VINCENT v MAXWELL

REASONS FOR JUDGMENT  CRAWFORD J

8 June 1989

1. The plaintiff, a registered valuer, has sued the defendant for damages for defamation based on the contents of a two page letter allegedly written and sent by the defendant to the Valuers Registration Board. Para. 3 of the statement of claim provides:

"3On the 15th November, 1988 the Defendant wrote and published of and concerning the Plaintiff and of and concerning him in the way of his profession the words in the form of a typewritten letter a copy of which is annexed hereto marked 'A'."

1. The annexure to the statement of claim appears to be a photocopy of a two page letter from T K Maxwell to the Valuers Registration Board.

1. The defendant has applied for orders that the copy of the letter annexed to the statement of claim as an exhibit "be removed therefrom" and that the statement of claim be struck out as failing to disclose a cause of action. As the defendant's counsel developed his argument it became clear that what the defendant was primarily seeking was to have the photocopy letter removed from the statement of claim. If removal of it resulted in the statement of claim failing to disclose a cause of action then the defendant would want the statement of claim struck out. Counsel made it clear that the defendant's objection was based on the annexation of a photocopy of the letter. He argued that the Rules of Court do not permit documents to be annexed, that pleadings must be stated in consecutively numbered paragraphs and that in those paragraphs the cause of action should be pleaded. He did not object, as part of his argument, to any particular portion of the annexed photocopy of the letter.

1. Reliance was placed on O20, r3(1) which states:

"3 — (1)    Every pleading shall contain, and contain only, a statement as concise as the nature of the case will admit, setting out the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, unless the facts to be pleaded can be stated concisely and explicitly in one paragraph, be divided into paragraphs numbered consecutively, and each containing as nearly as may be a separate allegation."

1. There is no breach, certainly not of any significance, of this rule in so far as the annexing of the letter is concerned. (I am ignoring its actual contents). The statement of claim does in fact consist of paragraphs numbered consecutively. The photocopy of the letter is embodied in par3 by reference and it is part of the statement of claim.

1. It was submitted that the status of the annexure was as potential evidence and that it could only become evidence, on the basis of admissibility and relevance, at the trial, and there might be a number of reasons why the letter might not in fact be admitted into evidence. I see no substance in this argument. The photocopy of the letter purports to be part of the statement of claim. It does not purport to be evidence. I see no real difference between embodying in the statement of claim a photocopy of it and on the other hand, a typed transcription of it. In any event a photocopy and a typewritten copy are both secondary evidence of the document itself. Further, it is clear law that in libel actions the statement of claim should set out the very words complained of and it is not usually regarded as sufficient to merely state their substance.

1. It is provided in O21, r30 that no technical objection shall be raised to any pleading on the ground of any alleged want of form. This is precisely what the defendant is endeavouring to do. Rule 31 provides that a judge may order to be struck out or amended any matter in a pleading "which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action". The submissions made on behalf of the defendant have not been put on any of such bases.

1. My attention has not been drawn to any case in which it was held simply that a photocopy of a document may not be annexed to a statement of claim. There have of course been cases where a copy of a document was struck out of a statement of claim for other reasons, for example because it tended to prejudice or embarrass a fair trial of the action. But annexation of documents appears to have been accepted by at least the Victorian and New South Wales Supreme Courts and by the Supreme Court of the Australian Capital Territory. I will refer to a few examples.

1. In A v Ipec Australia Ltd [1973] VR 39 the statement of claim alleged defamation in each of six articles in a newspaper. Photocopies were annexed to the statement of claim. No comment was made in the judgment concerning the practice of annexing a photocopy of a document. However the defendant's application was to strike out the statement of claim on the basis that it tended to prejudice, embarrass or delay the fair trial of the action, the substance of the submission being that each of the articles contained extraneous or irrelevant material. That is not the basis of the application of the defendant in this case notwithstanding that his counsel mentioned the possibility that there is extraneous or irrelevant material in the photocopy of the letter. In A v Ipec Australia Ltd (supra) the statement of claim was not struck out and the annexed pages remained in it.

1. In Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 39 the plaintiff sued for defamation annexing to the statement of claim photocopies of thirty five advertisements which obviously contained matters which were not material to the action such as certain words, photographs of motor vehicles and pictorial representations of various animals. It was ordered that all the photocopies be struck out as being embarrassing, but not simply because they were annexures. In fact there is no reference in the report of the case, which went to the Court of Appeal, to it being an improper practice per se to annexe copies of documents to a pleading.

1. In Rubenstein v Truth and Sportsman Ltd [1960] VR 473 the statement of claim referred to alleged defamatory material being contained in certain articles and announcements, photographs and caricatures in ten different issues of a newspaper, copies of which were annexed. The defendant complained that the statement of claim failed to indicate whether the libels complained of were constituted by all the words, announcements, photographs and caricatures appearing in all of the articles referred to, or particular passages only of such articles or some of them. At p474 Adams J held that this was a valid criticism. But he also said:

"I consider it desirable that the defamatory matter complained of should appear on the face of the pleading itself or by annexure thereto, rather than by reference merely to documents not on the court record".

1. By implication he had no objection to the practice of annexing a copy of a document to a pleading in an appropriate case. In Burrows v Knightley (1987) 10 NSWLR 651 the words complained of appeared in four editions of a newspaper and copies were respectively set out in four schedules to the statement of claim. The defendants applied to strike out the statement of claim, not because of the fact of annexation, but for other reasons. The application failed.

1. Finally I refer to Waterhouse v Australian Broadcasting Commission (1988) 90 FLR 25 which was a decision of the Supreme Court of the Australian Capital Territory. In that case a transcript of what was broadcast on the "Four Corners" programme on ABC television was annexed to statements of claim in certain actions. It does not appear from the judgment that any complaint was made of the annexation per se.

1. My conclusion is that simply because a photocopy of a document is annexed is no grounds for striking out the statement of claim or striking the copy from it. Applications on such a technical ground should not be allowed. However there may be something about, or in, the annexed document that is objectionable and which might cause a judge to strike out it, or part of it, on one of the grounds contained in O21, r31 or perhaps on some other ground to be found elsewhere in the law.

1. I have been informed by the plaintiff's counsel that in fact the second page of the annexure was mistakenly included as a copy of the second page of the letter. The second page of the original letter was apparently a different one than that annexed. If so it is clear that the statement of claim needs amendment but of course the defendant should have an opportunity to object before any such amendment occurs. I will discuss the matter with counsel.

1. I hold that the photocopy of the letter which is annexed to the statement of claim should not be struck out and the application should be dismissed.