Waterhouse v Perkins

[2000] NSWSC 641

CITATION:	Waterhouse v Perkins [2000] NSWSC 641
CURRENT JURISDICTION:	Common Law Division Defamation List
FILE NUMBER(S):	SC 13146/91; 21381/96
HEARING DATE(S):	15, 16, 28, 29 June 2000
JUDGMENT DATE:	29 June 2000
PARTIES :	Martin Otto Waterhouse (Plaintiff) Kevin Perkins (1st Defendant) No. 13146/91 Gordon & Gotch Limited (2nd Defendant) Capricon Link (Australia) Pty Limited (3rd Defendant) McPhersons Limited t/as The Book Printer (4th Defendant) No. 21381/96 718932 Pty Limited (formerly known as Globe Press Pty Limited) (2nd Defendant) Capricon Link (Australia) Pty Limited (3rd Defendant) David Inwood (4th Defendant) Yvonne Inwood (5th Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	TK Tobin QC / RA Campbell (Plaintiff) PJ Beazley (Solicitor) (1st Def) BAM Connell (2nd Def) DA Caspersonn (4th Def - No. 13146/91) TB Stienissen (Solicitor) (3rd & 4th Defs - No. 21381/96) S Carmichael (Solicitor) (5th Def - No. 21381/96)
SOLICITORS:	Waterhouse Solicitors (Plaintiff) Philip J Beazley (1st Def) (No. 13146/91) Bush Burke & Company (2nd Def) Gye Associates (3rd Def) Minter Ellison (4th Def) (No. 21381/96) Bush Burke & Company (2nd Def) Gye Associates (3rd & 4th Defs) Stephen Blanks & Associates (5th Def)
CATCHWORDS:	DEFAMATION - justification - public interest - offences by plaintiff as a juvenile.
LEGISLATION CITED:	Defamation Act 1974, s 15 Children's (Criminal Proceedings) Act 1987, ss 10 & 11 Child Welfare Act 1939, s 11
CASES CITED:	Horton v Jones (No. 2) (1939) 39 SR (NSW) 305-309; Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413; Chappel v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153; Marsden v Amalgamated Television Services Pty Ltd (Levine J, 20 November 1998); Marquand v Littlemore (Levine J, 29 August 1997); Clines v Australian Consolidated Press Ltd (1966) 67 SR (NSW) 364.
DECISION:	See paras 25 - 31.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

DUNFORD J

Thursday, 29 June 2000
13146/91 Martin Otto WATERHOUSE v Kevin PERKINS & ors
21381/96 Martin Otto WATERHOUSE v Kevin PERKINS & ors
JUDGMENT

(O n application by 1st and 2nd defendants to file Amended Defences in matter no. 13146/91.)

1    HIS HONOUR: Following my earlier judgment on the capacity and form of the imputations contained in the plaintiff's Amended Statement of Claim delivered on 16 June last, I turn now to deal with the applications by the 1st and 2nd defendants in proceedings no. 13146 of 1991 to file Amended Defences. 2    The general principle is that such amendments should be allowed at least at this stage, provided that an amendment will not be allowed if it is liable to be struck out as, for example, disclosing no matter of defence or it is vexatious or embarrassing or likely to delay the fair trial of the action; c.f. SCR Pt 15 r 26 and see Horton v Jones (No. 2) (1939) 39 SR (NSW) 305-309; Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 at 425. 3 In para 6 of the 1st defendant's proposed Amended Defence, justification pursuant to s 15 of the Defamation Act 1974, is pleaded, that is that the imputation is a matter of substantial truth and either relates to a matter of public interest or is published under qualified privilege. 4    This defence is pleaded to imputations (a), (b), (c), (d), (e), (f) and (i). Mr Tobin QC objects to this defence being pleaded in relation to imputations (a) and (b). 5    In para 7 the first defendant seeks to plead contextual truth pursuant to s 16, and in respect of those contextual imputations he objects to those set out in sub-paras (b)(i) to (v) of para 7. 6    He also objects to similar, though not identical, defences pleaded in the 2nd defendant's proposed Amended Defence paras 7 and 9. 7    The 1st defendant has indicated and has circulated a proposed further amendment by which he seeks to lead substantial truth as a defence in the common law states and territories, and a similar defence is pleaded in para 8 of the 2nd defendant's proposed Amended Defence. 8    Mr Tobin's submission on behalf of the plaintiff, is to the effect that any proceedings in the Children's Court against the plaintiff in 1964 when he was 15½ years old cannot possibly relate to a matter of public interest and therefore the amendments, to the extent I have indicated, should not be allowed. 9    He submits that the policy of the law as embodied in legislation has for many years, subject to specific exceptions, been to exclude members of the public from the Children's Court during the hearing and consequently to prohibit the publication of the names of defendants to such proceedings. 10    These provisions are now embodied in ss 10 and 11 of the Children's (Criminal Proceedings) Act 1987 but that Act does not apply to the 1964 proceedings involving the plaintiff when the relevant legislation was the Child Welfare Act 1939, s 11. 11 Ex. 1 and the written submissions of the 1st defendant make it clear that the proceedings were reported at the time, although the plaintiff was not named. 12 I am satisfied that public policy since well before 1964 has been that no publicity should be given to criminal proceedings against juveniles, the reasoning behind such policy being so that persons who make mistakes when young should not have such mistakes count against them in their adult lives. Reference was also made to s 579 of the Crimes Act 1900 and the provisions of the Criminal Records Act 1991. 13    Even without these various legislative provisions it is difficult to see how such proceedings or the events giving rise to such proceedings could possibly relate to a matter of public interest some 26 years later, that is in 1990 when the material complained of was published. 14    Particulars of Public Interest have been furnished in accordance with the rules and Mr Beazley, Solicitor for the 1st defendant, relies in this context particularly on Particulars D and G, which are as follows:

"D. The events, the subject of contextual imputations, are inherently matters of public interest being matters involving criminal activity and the practise of the plaintiff as a barrister and solicitor providing services to the public and being an officer of the Supreme Court of New South Wales; and
G. Public concern about honesty and integrity in the legal profession and the need for legal practitioners to be of good character and repute."

15    Whilst one readily accepts that legal practitioners need to be of good character and repute and members of the public seeking the services of legal practitioners are entitled to information which enables them to judge whether such practitioners are of good character and repute, for myself I still fail to see how one's activities as a youth could possibly relate to a person's good character and repute and/or fitness to be a legal practitioner some 26 years later as an adult. 16    The question, therefore, arises whether I should disallow the amendments in so far as they seek to plead justification or contextual truth in relation to imputations (a) and (b), or should I leave such matters to the trial judge, bearing in mind that these are pre-1996 proceedings and therefore all issues other than public interest and qualified privilege are matters to be determined by the jury. 17    I was referred to the decision of Hunt J in Chappel v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153 where his Honour held that the sexual activities of an Australian Cricket Captain could not possibly relate to a matter of public interest and therefore the plea of justification under s 16 could not possibly succeed, but those proceedings related to an application for an interlocutory injunction to restrain the publication of the alleged defamatory matter and the same considerations do not necessarily apply to what is in effect an application to strike out parts of a pleading. 18 In a number of cases the Courts have expressed reluctance to strike out pleas, particularly pleas of justification, prior to the hearing, e.g. Marsden v Amalgamated Television Services Pty Ltd (Levine J, 20 November 1998); Marquand v Littlemore (Levine J, 29 August 1997); Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413, but the issue in those cases has been whether the defendant would be able to establish the issue of truth, rather than whether the defendant would be able to establish that the imputation related to a matter of public interest. 19 A somewhat similar issue arose in Clines v Australian Consolidated Press Ltd (1966) 67 SR (NSW) 364 whether the publication was "for the public good", and Jacobs JA at 383 said:

"nevertheless is a question which must be determined by the judge at the trial and is not capable of being determined on a demurrer unless it could be said that under no conceivable circumstances could it be established that the defamatory matter alleged in the declaration was published for the public good. I do not say that such a situation is impossible, but I do say that it would be very rare indeed ..."

see also Combe v Santamaria (1986) 84 FLR 292.

20    Whilst reluctant to encourage any more interlocutory applications in defamation proceedings than are absolutely necessary, and bearing in mind that under the new s 7A procedure these issues can conveniently be dealt with by the trial judge at the trial of the defences after the jury's function under s 7A has been concluded, I have reached the firm and strong view that this is a case where there is no conceivable chance of the defendants being able to establish that the activities of the plaintiff as a 15 year old could possibly relate to a matter of public interest, and that public interest cannot possibly be shown in relation to the plaintiff's imputations (a) and (b), and it then becomes a discretionary matter to determine what course I should take. 21    The factors in favour of disallowing the passages objected to are that, as this is a general jury trial, the jury's time will necessarily be wasted whilst these matters are argued and decided by the trial judge in the middle of the trial, and that to disallow the amendments objected to would obviate the need for interrogatories, discovery and/or preparation concerning these issues. 22    However, ultimately I have decided I should not exercise my discretion in that way, and for the following reasons: in relation to both defendants there is a defence of justification at common law in respect of the relevant other states and territories where it is not necessary to show that the matter complained of relates to matters of public interest, and the defendants will also, it appears, seek to rely on the truth of imputations (a) and (b) in mitigation of the damages, and they point out that the plaintiff relies on the falsity of those imputations as matters going to the aggravation of damages. Neither of these issues involves questions of public interest. 23    It follows that even if I were to exclude the matter objected to by the plaintiff there would not be a saving in relation to interrogatories, discovery or preparation for trial, as these would still be live issues. 24    Mr Tobin has submitted that there probably would be a saving in this regard, but I suspect there is a certain degree of speculation and pious hope in that submission. 25    For these reasons I will allow the amendments as sought by the 1st and 2nd defendants in proceedings no. 13146 of 1991. 26    I grant leave to the 1st and 2nd and 4th defendants in the 1991 matter to file Amended Defences in the form approved nunc pro tunc. The 3rd and 4th defendants' Amended Defence to be filed and served within seven days. 27    I grant leave to the 2nd defendant in the 1996 matter to file an Amended Defence nunc pro tunc. Costs occasioned by all amendments to be paid by amending party. 28    Any Amended Replies by the plaintiff to be filed and served by 18 July 2000. 29    I reject the application for consolidation, and order that both actions be heard together; evidence in one to be evidence in the other. 30    All questions of discovery and interrogatories and further directions stood over to the Defamation List on Friday 21 July 2000. 31    Costs of 15, 16, 28 and 29 June 2000 to be costs in the cause.

oOo

Last Modified: 09/26/2000