Zoccoli v Hoser
[2000] VSC 413
•10 October 2000
SUPREME COURT OF VICTORIA
MAJOR TORTS LIST
No. 7825 of 1999
| ANTHONY ADAM ZOCCOLI | Plaintiff |
| v | |
| RAYMOND HOSER and KOTABI PTY. LTD (ACN 007 395 048) | Defendants |
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JUDGE: | HEDIGAN, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2000 | |
DATE OF JUDGMENT: | 10 October 2000 | |
CASE MAY BE CITED AS: | Zoccoli v. Hoser | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 413 | |
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Libel – Defendant admitting that some of the plaintiff's claimed imputations arose from the publication but denying others arose – Defendant pleading justification but not contending that any other meanings arose – Whether required to specify other meanings.
Particulars – Defendant's particulars of justification not sufficiently clearly related to the plaintiff's imputations.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms G. Schoff | Riordan & Partners |
| For the Defendants | Mr D. Beach | Minter Ellison |
HIS HONOUR:
This proceeding is one by the plaintiff for libel arising out of the publication of a book entitled "Victoria Police Corruption" ("the book"). The first defendant Hoser was the author of it and the second defendant, a company controlled by the first defendant, was its publisher and distributor throughout Australia. The material suggests something between 4,000 and 5,000 copies of it were sold and distributed throughout Australia. Part of the book is claimed by the plaintiff to be defamatory of him. This section of the book is, according to the statement of claim, between pp.149-160 (Schedule A annexed to the statement of claim). The plaintiff by his statement of claim alleges the words in Schedule A are defamatory of him. Paragraph 7 of the statement of claim sets out seven imputations numbered (a)-(g) which the plaintiff contends arise from the published words. He claims compensatory and aggravated damages.
The defendants’ defence, with respect to the plaintiff’s pleading in paragraph 7 as to the meanings alleged to arise from the use of the words, admits three of the meanings alleged, namely (a), (c) and (d), but otherwise denies the other four alleged imputations. Paragraph 10 of the defence is in the following form
"10. The words complained of, in the meanings which they bore, were true in substance and in fact."
The defence goes on to plead qualified privilege founded upon duty and common interest, and alleged to arise from the discussion of the work of government and political matters. The statement of claim also relies upon libel arising from publication in States other than the State of Victoria with reference to the statutory regimes that apply in the States identified.
The plaintiff sought further and better particulars of the plea under paragraph 10 of the defence. The particulars given in response to that request were to this effect:
"(a) the words complained of were true in substance and in fact in respect of any meaning they are found to bear in this proceeding (including the meanings admitted in paragraph 7(a) of the defendants’ defence herein)."
The particulars of this plea of justification were given in paragraph 1(b)(i)-(iv) of the defendants’ further and better particulars of defence of 26 May 2000.
It is to be noted that the particularisation of the plea of justification was expressed differently to the plea in paragraph 10 of the defence, although it can be thought that there is a difference without a distinction in most respects. The plaintiff was dissatisfied with the further and better particulars of paragraph 10 of the defendants’ defence supplied in accordance with the request for further and better particulars of 10 May 2000 and issued a summons of 4 September 2000 seeking further and better particulars of paragraph 10. This summons was heard by Master Wheeler in conjunction with summonses by the defendants seeking a further affidavit of documents and further and better answers to interrogatories. As it will appear, it is not necessary for me to devote attention to the latter two aspects.
Master Wheeler dismissed the plaintiff’s summons for further and better particulars of the plea of justification as set out in paragraph 10 and it is from that decision that the plaintiff has appealed to the Court in accordance with the Rules. I should state that the matter was remitted by me to the Master because of constraints of time affecting my capacity to deal with it and also because it involved issues of discovery which ordinarily I do send to the Master. I should also state that it is my practice to hear interlocutory disputes about pleadings and similar matters without reference to the Master.
The plaintiff’s outline of argument (in writing pursuant to orders made by me) primarily focussed on the alleged vice that the pleader had not particularised the meanings which the defendants contended the words bore and which they seek to justify. It was said the purpose of the request was to require the defence to specify and identify the meanings the words complained of, in respect of which it was alleged the words were true in substance and in fact, and to give appropriate particulars. Thus the plaintiff complained about the defendants’ pleadings in conjunction with the particulars, claiming that the plaintiff was left in the position of not knowing which of the meanings set out in paragraph 7 of the statement of claim would be sought to be justified by the defence at trial, and contending that modern rules of pleading required a defendant to set out the defamatory meanings on which it relied as part of its defence of justification, that is, the so-called Polly Peck plea. Reliance was placed upon statements by me in Hore-Lacey v. David Syme & Co. Ltd.[1] and by the Court of Appeal in the same case[2]. The written submissions specifically stated:
"It is not sufficient for the defendant to seek to justify any meaning the words are found to bear. The defendants must know what meanings they seek to justify and they should be compelled to set out those meanings so that the plaintiff knows the case against him."
Having regard to the way the matter developed before me, it does not become necessary for me to make any general rulings as to whether the language employed in the pleading is one which must be permitted in this case or all cases.
[1][1998] VSC 96.
[2][2000] VSCA 24.
The defendants’ outline of written submissions made it clear, and the statements of Mr Beach of counsel for the defendants in open court on this hearing made it clear, that the defendants do not intend to put forward any meaning different from those relied on by the plaintiff. The defendants’ position is that it admits that the imputations (a), (c) and (d) do arise and it seeks to justify those. They also argue that the other imputations relied upon do not arise (thus the denial in the pleading) but that it proposes to justify them in their terms on the basis that it may be that a jury would accept that the balance of the imputations or some of them do arise. Thus it became unnecessary for it to be decided on this application whether the pleading and particulars in the form in which they are could be upheld. Since it was not intended by plaintiff or defendant to be argued that any other possible meaning arose, and since the defendant had made it clear that it would justify all of the meanings although not accepting that they all arose, the disputes became arid and mute.
Ms Schoff, who appeared for the plaintiffs, claimed that the defendants’ position in this respect had never been properly articulated before and, so it seemed to me, suggested that had it been known that the issue was not the subject of debate, the contest would not have arisen. Both parties made reference to matters claimed to have arisen before another judge in the course of a failed application for an injunction to restrain further publication concerning these aspects. However, there was no transcript of that application and I am little aided by reference by either party to what is claimed to have occurred. The plaintiff, so it appears, accepted that so long as the particulars of justification were put into a proper form (Ms Schoff arguing they were not) then the difficulties which she had addressed in written argument dissipated. I will refer to the matter of particulars shortly.
It is clear enough from some of the statements of the majority judges in Hore-Lacey v. David Syme on appeal that if the defendant by its pleading indicates an intention to justify a meaning different from those relied on by the plaintiff, the defendant should be required to state what that meaning is, with the necessary particulars of the facts, upon which the justification is based. Other statements are to the effect that the defendant might raise an argument that the words have a different, but not substantially different, meaning to the ones alleged by the plaintiff which they are able to justify on the facts.
I suggested to Mr Beach that either the further particulars of defence or, as a matter of preference, the relevant plea in the defence might have been expressed to allege that the words complained of were true in substance and fact in the meanings which they might be found to bear "not being any different in substance with the meanings contended for by the plaintiff". Mr Beach’s response was that the failure to set out any alternative meaning indicated that the defendant was not contending there was any imputation substantially different in meaning to those contended for by the plaintiff, even though they were not all accepted as being capable of arising. Doubtless this is true enough so long as all are aware of the applicable law and the inferences that might be drawn from the pleadings failing to address other matters. It is to be preferred as a matter of clarity, and at least for pleading certainty, that in circumstances where a defendant admits some imputations as being capable of arising but denies that others are, then proceeds to justify, that it put beyond debate by the form of the pleading that no alternative meanings are being alleged. It may be that this is not necessary in some cases but the matrix of facts compressed into the key pages of the published book are such that it is desirable that the pleading make the position clear beyond any doubt. This can be done by adding the words to which I have referred to the pleading and I invite the defendants to amend their pleading to make that clear. It is true that it is now clear beyond any doubt, based upon the defendants’ written submissions and Mr Beach’s public statement that that is the fact. However, the trial judge will primarily be looking at the pleadings rather than statements made in the course of submissions outside the pleadings.
There was considerable debate before me as to whether the form in which the defendants’ particulars of justification were expressed left something to be desired in terms of decoding them to relate to the imputations as pleaded. The defendants’ position is, after all (whilst not conceding that the specified four of the claimed imputations arise) that all of them, if they arise and are open, are sought to be justified. I have formed the view that the particulars of justification should be expressed so to make it clear what particulars are annexed to which imputation. It may be, as was suggested to me by Mr Beach, that the relevant matters set out in the particulars in particular (iv) apply to all of the claimed imputations. However, in my view the defendant must know what it is as being put forward by them as constituting the actual substratum of the plea of justification. Even if it involves repetition, particulars of justification must be given in relation to each imputation which the defendant intends to justify. As I understand the argument, that is all of them, although it is not conceded that all of the imputations arise.
In my view these arguments do not relieve the defendant from the necessity to particularise the justification in relation to each of the imputations. The failure of the defendants in Hore-Lacey appropriately to organise the particulars to make them meaningful and understandable in relation to the imputations claimed and sought to be justified necessitated the making of orders in relation to particulars, none of which were disagreed with by the Court of Appeal and were, in the event, complied with by the defendants.
Accordingly I order that the defendant file further and better particulars of its defence pursuant to the plaintiff’s request of 10 May 2000 within thirty days. Essentially this means that it is required that the defendant, as I have already indicated, denote in clear form the particulars or justification relied on in relation to each of the plaintiff’s imputations or meanings set out in the statement of claim.
It appears from statements made by Ms Schoff that the plaintiff, upon compliance with these orders concerning the particulars, will supply further and better answers to the interrogatories No. 9-26, which have been the subject of some dispute between the parties. The period in which its answers are to be supplied is within 21 days after service of the further and better particulars.
I do not propose to make any order for costs in respect of the hearing before me. Counsel for the plaintiff claimed that it was not until the receipt of the outline of the defendants’ submissions, then reinforced by the statements made by Mr Beach for the defendants in the course of the hearing before me, it was made clear that the defendants did not intend to argue for any meaning different from the substance of the imputations pleaded by the plaintiff as arising from the publication. The penultimate paragraph in the summary by the Master of his reasons for decision would suggest that it was at least apparent to him that the defendants were not seeking to press for some meaning other than those which the plaintiff had pleaded to justify that. There was, however, some difference in the manner of expression of paragraph 10 of the defence and the particulars. In one way, there was no basis for the plaintiff to make the assumption, either founded upon the pleading of the particulars, that the defendant was pressing for some meaning outside the plaintiff’s imputations although one can understand that the plaintiff wanted clarification of this issue. On the other side, I accept that the defendants have, in the particulars they have given for justification as explained by Mr Beach, and perhaps amplified by him in oral argument, specified the boundaries of the material which will be relied on for justification. Nevertheless, in my view the form of the particulars lacked something in the way of clarity and required certain assumptions to be made as to the applicability of the particulars to the pleaded meanings. For that reason I have made the order for further and better particulars.
In my judgment, both parties have succeeded to some extent and lost to some extent and in the exercise of my discretion I do not propose to make any order for costs, leaving them to lie where they fall. If there is any other aspect concerning costs which counsel wish to address, I am prepared to hear counsel.
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