Jackson-Knaggs v Queensland Building Services Authority
[2003] QDC 298
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- Unreported Judgment
- Jackson-Knaggs v Queensland Building Services Authority[2003] QDC 298
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Jackson-Knaggs v Queensland Building Services Authority[2003] QDC 298
Jackson-Knaggs v Queensland Building Services Authority[2003] QDC 298
DISTRICT COURT OF QUEENSLAND
CITATION: | Jackson-Knaggs v QBSA [2003] QDC 298 |
PARTIES: | MARK ANDREW JACKSON-KNAGGS Plaintiff v
QUEENSLAND BUILDING SERVICES AUTHORITY Defendant |
FILE NO/S: | B 3065/02 |
DIVISION: |
|
PROCEEDING: | Interlocutory application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 3 September 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 July 2003 |
JUDGE: | McGill DCJ |
ORDER: | Application dismissed with costs. |
CATCHWORDS: | DEFAMATION – Pleadings – defence – denial of inference alleged by plaintiff – alternative meaning alleged – whether liable to be struck out. Robinson v Laws [2003] 1 Qd R 81 – distinguished. |
COUNSEL: | The plaintiff in person S J Farrell for the defendant |
SOLICITORS: | Barry & Nilsson for the defendant. |
- [1]This is an application to strike out the amended defence filed 9 July 2002. The application is made under r 171, and was advanced on two grounds: that the amended defence had a tendency to prejudice or delay the fair trial of the proceedings, and in the alternative disclosed no reasonable ground of defence and was an abuse of process of the court.
Course of the action
- [2]By a claim and statement of claim filed 18 July 2002 the plaintiff claimed damages for defamation in respect of words contained in a press release published by the defendant on 2 April 2001, and in a different press release published by the defendant on 21 May 2001. In relation to the former press release, the plaintiff alleged in paragraph 7 of the statement of claim that the words meant, according to their ordinary and natural meaning, two specific imputations. In relation to the second press release, the plaintiff pleaded that the words used meant, according to their ordinary and natural meaning, four specific imputations.
- [3]On 30 August 2002 the defendant filed a notice of intention to defend and defence. The plaintiff filed a reply on 18 November 2002. On 22 April 2003 the plaintiff applied for an order that the defendant provide disclosure of documents. That application came before another judge on 24 April 2003 when it was adjourned to 30 April 2003. On that day a further affidavit on behalf of the defendant was filed by leave, the application was dismissed and the costs of the application including the costs of the adjournment were made costs in the cause.
- [4]The defendant advised the plaintiff in writing on 1 May 2003 that the defendant’s defence “will require amendment to plead further matters by way of defence.”[1] It noted that there was a right to amend the defence under r 378, which was correct. On 12 May 2003 the plaintiff advised that he did not have any present intention to amend the statement of claim, and threatened to sign a request for trial date unless he heard from the defendant within 14 days.[2] There was further correspondence between the parties in which the plaintiff was pressing for any amendment to the defence to be made, and on 13 June 2003 he served a signed request for trial date.[3] The amended defence was filed, and presumably served, on 9 July 2003. By that amended defence some of the allegations in the existing defence were modified, and in addition some new matter was pleaded. It is not necessary to detail the alterations; the overall effect of the alterations was significant, and would have had a significant effect on the scope of disclosure of documents in the action.
The first ground
- [5]The plaintiff argued that to allow the amended defence to stand would set back the timely hearing of the matter, which so far as the plaintiff was concerned was ready for trial. It had taken the defendant ten weeks after originally raising the proposal to amend the defence before the amended defence was filed and served, and the amended defence had been filed over ten months after the original defence had been filed. The plaintiff submitted that there was no good reason why the defence in its amended form had not been filed originally. Accordingly the plaintiff submitted that the amended defence should be struck out. In effect, the plaintiff sought to confine the defendant to the terms of the defence originally filed.
- [6]The solicitor for the defendant has sworn that, in connection with disclosure in the action, he had perused and analysed three cartons of documents in the possession of the defendant relating to a public hearing of the Queensland Building Tribunal in April 2001, and six files in the possession of the defendant relating to Masterman Homes Pty Ltd, and about eight files relating to MHD Constructions Pty Ltd; these were two companies with which the plaintiff was apparently formerly associated.[4] During this process, he was instructed that the defendant held approximately 200 complaint files relating to these two companies, that is files where persons who had had dealings with one or other of those companies had complained to the authority about the company concerned.[5] At that point he gave consideration to whether this circumstance was something which ought to be raised in some way by way of defence. On 5 June 2003 he briefed counsel to advise and settle amendments to the defence, and received a response from counsel on 4 July which led to the amended defence being filed and served on 9 July 2003.[6]
- [7]In these circumstances, although it does seem to have taken some time for the defence to come into its current form, it does not appear that that was because of any attempt on the part of the defendant merely to delay the trial, or to obstruct the plaintiff’s claim. Rather it appears that, in the course of a relatively complex preparation for disclosure, the possibility of additional matters of defence arose, and these were then put in place within a reasonable time, allowing for an opportunity for consideration by counsel first.
- [8]This does not appear to be a case where the defendant has deliberately delayed filing an amended pleading for tactical reasons, or is otherwise deliberately trying to obstruct the plaintiff’s action. The matters raised by the amendment are at least arguable defences. Applying the approach laid down by the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, a court should be reluctant to prevent a party from raising an arguable defence provided that any prejudice to the other party can be compensated by costs. As the plaintiff has no legal representation, he has not been put to extra legal costs because of the amendment of defence. Insofar as the plaintiff is entitled to damages for defamation and is being kept out of them by the delay, that is a matter which can (if thought fit at the trial) be compensated for by way of interest under s 47 of the Supreme Court Act 1995.[7] In all the circumstances I am not persuaded that it would be appropriate to strike out the amended defence on this ground.
The second ground
- [9]The defendant also submitted that certain aspects of the amended pleading ought to be struck out as not disclosing a proper defence as a matter of law, and hence being vexatious and an abuse of process. One of the matters raised by the defendant in the amended defence was that the words complained of bore certain meanings other than the meanings alleged in paragraphs 7 and 10 of the statement of claim. The defendant is entitled to deny that the published words bore the specific imputations alleged by the plaintiff, and, under r 166(4) of the Uniform Civil Procedure Rules, must accompany any such denial with a direct explanation for the party’s belief that the allegation is untrue. One way in which that can be done is by alleging that the words complained of in fact bore a different meaning, and in terms that is what has been done in paragraphs 5 and 7 of the amended defence. Such a plea will not be liable to be struck out unless the meanings alleged do not fairly arise from the words published: Robinson v Laws [2003] 1 Qd R 81, esp at p.94. The pleading in that case was struck out because it alleged that the true meaning of fairly specific words which had been published was something much more general, which the defendant apparently believed could be justified.
- [10]Paragraphs 5 and 7 of the amended defence do not appear to be excessively general in terms. The words alleged in paragraph 5 of the statement of claim are quite short and can be conveniently quoted: “In 1997, Jackson-Knaggs was at the helm of Masterman Homes shortly before it crashed with debts over $6 million.” The imputations alleged by the plaintiff in respect of that publication were: “(a) that the plaintiff was responsible for the major business failure of a construction company; and (b) that the plaintiff was in control of the company at the time of its collapse.” The true meaning alleged by the defendant of the words complained of, alleged in paragraph 5(a) of the amended defence, was: “(i) that, before Masterman Homes collapsed in 1997, the plaintiff had been in a position to control or influence the conduct of Masterman Homes; (ii) that the plaintiff ceased being in a position to control or influence the conduct of Masterman Homes shortly before Masterman Homes crashed with debts of over $6 million; and (iii) that shortly after the plaintiff ceased being in a position of control or influence over Masterman Homes, it crashed with debts over $6 million.”
- [11]That is not the sort of pleading which was struck out by the Court of Appeal in Robinson; it lacks the particular vice identified in the pleading in that case, of a degree of generality which did not meet the specific allegations published. In the present case there may be room for argument about just how the expression “at the helm of” could be understood, and whether a statement that the plaintiff was at the helm of a particular company shortly before it crashed implies that he was still at the helm at the time of the crash, or implies that he had ceased to be at the helm at the time it crashed, but that is essentially just an issue as to what the natural meaning of the words used really is. The interpretation relied on by the defendant is a true alternative to the imputation relied on by the plaintiff in paragraph 7(b), and it is clear that the imputation alleged in paragraph 7(a) is not something derived directly from the actual words used, but involves an inference being drawn by the reader from the statement published. Whether that inference properly flows from the words published is a matter which can be determined on the trial, but it seems to me reasonable enough for the defendant to allege that the true meaning of what was published was limited.
- [12]In my opinion the meanings alleged in paragraph 5 of the amended defence do fairly arise from the words pleaded in paragraph 5 of the statement of claim, and therefore the result in Robinson v Laws (supra) is not appropriate in the present case. What was pleaded does in my opinion amount to a true denial of at least the plaintiff’s second imputation, if not both of them. It may well be that the context relied on by the defendant will give some further colour to the pleading, but even without that it seems to me that the meanings alleged by the defendant can fairly arise from the words published as alleged in paragraph 5 of the statement of claim.
- [13]The passage relied on in paragraph 8 of the statement of claim is longer and not conveniently quoted. The imputations alleged by the plaintiff to arise from this passage are: “(a) that the plaintiff was responsible for the multi-million dollar business failure of a construction company; (b) that the plaintiff was in control of that company at the time of its collapse; (c) was familiar and employed an accounting sharp practice known as “kiting” deliberately to mislead the company’s financiers; and (d) had transferred assets from the company into the hands of a number of girlfriends and his parents in order to cheat the company’s creditors.” Each of those imputations in my opinion fairly arises from the passage quoted in paragraph 8.
- [14]As to the first and second of these, the defendant alleged in paragraph 7 of the amended defence that the press release carried the same meaning as alleged in paragraph 5 of the amended defence in relation to the words quoted in paragraph 5 of the statement of claim. The difficulty here is that the concluding words of this passage virtually repeat the words quoted in paragraph 5 of the statement of claim, but it is not clear whether the plaintiff’s imputations (a) and (b) relate to those words, or relate to other statements in the passage concerning the plaintiff’s involvement with a different company. For reasons given above these alleged meanings are open in relation to the passage referring to Masterman Homes, but they would not apply in relation to the other construction company. Bearing in mind the similarity between paragraphs 10(a) and (b) and 7(a) and (b), in the absence of confining particulars in my opinion the plea in paragraph 7 of the amended defence is not one which ought to be struck out, for the same reasons as paragraph 5 ought not to be struck out.
- [15]In relation to imputation (c), the defendant alleged in the amended defence[8] that the words in their ordinary natural meaning meant that: “(a) there had been evidence given to the tribunal that: (i) the plaintiff made or caused to be made deposits of cheques into the account of MHD Constructions Pty Ltd, including cheques drawn by his parents; (ii) the deposit for short term loans, or the financial benefits to MHD Constructions Pty Ltd of the deposits were cancelled before the funds could be moved into its account; (b) it had been said during evidence to the tribunal that that practice was known as “kiting”; (c) the practice of “kiting” made it look like the cash flow of MHD Constructions Pty Ltd was healthy and kept financiers of MHD Constructions Pty Ltd temporarily at bay.”
- [16]I do not think that these four parts should be read separately, but rather as representing different features of what the press release meant the plaintiff had done. In other words, the pleading should not be read as if it alleged in effect that the plaintiff’s knowing involvement in the process was limited to what was alleged specifically in paragraph 8(a)(i). Rather it should be read on the basis that the plaintiff was involved in making the deposits which had the characteristics described in paragraph 8(a)(ii), which with those characteristics was known as “kiting” and produced the appearance and had the effect identified in paragraph 8(c). If it were intended by the pleading to suggest that the plaintiff’s involvement in the process was limited, that might be difficult to reconcile with the terms of the press release quoted in paragraph 8 of the statement of claim, but I do not think that paragraph 8 of the amended defence should be read in that way. Read in the way I would read it, it seems to me to embody an exposition of part of the press release complained of which can fairly be advanced on the basis of its terms. Indeed, it seems to me that the distinction between the imputation pleaded in paragraph 10(c) by the plaintiff and the alternative meaning alleged in paragraph 8 by the defendant is fairly subtle.
- [17]In relation to the fourth imputation relied on by the plaintiff, the defendant alleged that the words used actually meant: “(a) the Queensland Building Tribunal had heard evidence that the plaintiff transferred funds from MHD Constructions Pty Ltd to his family, his girlfriend and a lingerie shop in the months leading up to the liquidation of MHD Constructions Pty Ltd; (b) it had been alleged before the tribunal that the said transfers comprised siphoning off such funds from MHD Constructions Pty Ltd.” Again, the meanings attributed to the passage by the defendant, far from being too general, are quite specific, and confine the passage to what it actually says, about certain things being said in evidence to the tribunal, and certain allegations having been made. There is a well established distinction for the purposes of the law of defamation between publishing the fact that an allegation has been made and publishing the subject of the allegation as a fact.[9] It seems to me that this is in substance the point being made in response to this inference, and that in these circumstances this is a fair response. The alternative meaning alleged by the defendant is in my opinion one that fairly arises from the words alleged to have been published, and therefore is not subject to being struck out on the basis identified in Robinson v Laws (supra). The alternative meanings in my opinion are genuine and are offered truly in denial of the plaintiff’s imputations.
A “Polly Peck” defence?
- [18]The plaintiff also claimed that the defendant was seeking in the amended defence to rely on the “Polly Peck” defence. This is a specific form of defence to a defamation action which has the support of some authority in England[10], but it has been authoritatively determined that it is not a defence available in Queensland under the Defamation Act: Robinson v Laws (supra). A characteristic feature of the defence is that it involves pleading a meaning of the words published different from the imputations relied on by the plaintiff and then alleging that that meaning was true and the publication of it was for the public benefit.[11] The Court of Appeal held that that approach was not open, particularly because of the way in which the cause of action was identified in the Defamation Act. It follows that, if the amended defence contained a “Polly Peck” defence, it would be appropriate to strike it out. But it does not do so. Not only does it not plead truth and public benefit in respect of the alternative meanings alleged of the words published, it does not plead a defence of truth and public benefit at all. There had been a defence of truth and public benefit pleaded in paragraph 16(d) of the defence in its unamended form, but one of the effects of the amendment was to delete that pleading. To strike out the amended defence would therefore have the effect of reinstating a defence of truth and public benefit. There is in my opinion no justification for that course. It follows that it is also inappropriate to strike out any part of the pleading in reliance on the proposition established by the decision of Mann v Mackay Television Ltd [1992] 2 Qd R 136, which was also concerned with a plea of truth and public benefit.
- [19]There were no other specific grounds relied on by the plaintiff as showing that the defence in its amended form was bad in law and ought to be struck out. It follows that I would not strike out the amended defence, or any part of it, on any of the grounds advanced on behalf of the plaintiff. The application therefore fails and should be dismissed with costs.
Costs
- [20]The defendant sought costs on an indemnity basis, on the grounds that the plaintiff had been warned that the application was without merit, and that most of the delay in the action had been the fault of the plaintiff. I do not consider either of those matters justifies an order for costs on an indemnity basis.
- [21]It was also argued that such an order could be supported on the basis that the plaintiff ought to have consented to the adjournment of the application so that it could be heard on 23 July 2003, at the same time as another application which had been filed on behalf of the plaintiff. That application also came on before me, and was adjourned by consent to that date. It was submitted that the plaintiff’s refusal to consent to the adjournment of the other application so that both applications could be heard at the same time has had the effect of exposing the defendant to additional costs. It was submitted that as a result the application involved a wilful disregard of known facts or clearly established law and involved the undue prolongation of a case by groundless contentions, two of the matters referred to in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 as justifying an order for costs on an indemnity basis.[12]
- [22]It seems to me however that, even if the refusal to consent to the adjournment did cause additional costs for the defendant, that is hardly the sort of conduct contemplated by the tests for indemnity costs expounded in that decision. The plaintiff may well have held the bona fide view that this application ought to be heard and determined prior to arguing the other application. I am wary about making orders for indemnity costs in relation to interlocutory applications, and do not consider that the circumstances of the present application justify that course.
- [23]The order therefore will be simply that the application is dismissed with costs.
Footnotes
[1] Affidavit of the plaintiff filed 7 July 2003, Exhibit A.
[2] Ibid.
[3] Ibid.
[4] Affidavit of Leahy filed 14 July 2003 para 5.
[5] Ibid, para 6.
[6] Ibid, para 4(i).
[7] John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131.
[8] Paragraph 8(a), (b), (c). I take it that paragraph 8(d) is intended to be a separate allegation.
[9] See Halsbury’s Laws of Australia, Vol 10, para 145-690.
[10] Polly Peck (Holdings) Pty Ltd v Trelford [1986] QB 1000.
[11] See Grundmann v Georgeson [1996] QCA 189 per Dowsett J.
[12] See also Di Carlo v Dubois [2002] QCA 225.