Fortune v Raven[2006] QDC 430

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE McGILL SC

and

and

and

BRISBANE

DATE 05/09/2006

ORDER

HIS HONOUR: This is an application which was filed on the 23rd of August of this year seeking various relief in relation to a proceeding commenced on the 20th of July by the filing of a claim and Statement of Claim.

In the claim, the first and second plaintiffs claimed damages for defamation and an injunction to restrain further publication of a particular letter. The Statement of Claim identifies a particular letter which it was said the defendants' wrote or published or authorised to be written and published on a particular day.

It was alleged that particular parts of that letter carried certain defamatory imputations of the first plaintiff and that in addition the letter carried other defamatory imputations of the second plaintiff. The plaintiffs claimed then damages for defamation and an injunction.

The application sought an order that the proceedings be struck out, an order that certain particulars be struck out and an order that the plaintiffs be precluded from referring to certain without-prejudice correspondence, and an order that a particular part of a particular paragraph of the claim and Statement of Claim be struck out, and an order in effect that the claim of the second plaintiff not be joined with the claim of the first plaintiff, and consequential relief in relation to the time for pleadings and costs.

At the time when the application was filed, no notice of intention to defend had been filed and on behalf of the plaintiffs the point was taken that the application was therefore irregular, being in breach of rule 135. That appears to have been conceded, and indeed is obvious since no notice of intention to defend was filed until the 4th of September 2006, that is to say yesterday.

Although it has been filed before the hearing of the application, the filing of the application remains irregular. An application for leave under rule 135 was nevertheless made orally. There was no application for leave included in the application that was filed. The application, however, remains irregular.

It is also irregular in that it is incorrectly titled. An application filed in a proceeding, that is to say not an originating application, should carry the same title as the title to the proceeding; that is to say, the same title as the claim by which the proceeding is commenced. That is clearly the requirement of the rules and the forms, and what has been produced instead is confusing and unhelpful.

However, the more substantial ground is that it was filed prior to the filing of the notice of intention to defend. That such a notice is required has long been a requirement of rules and precedes the Uniform Civil Procedure Rules considerably. In effect, a filing of a notice of intention to defend involves a submission to the jurisdiction of the Court and before anything else is done in a matter, it is appropriate for a Court to know whether the parties brought before the Court are submitting to the jurisdiction of the Court, or whether there is some issue about that. Of course, the submission cannot extend the limit of jurisdiction of a statutory Court, but where there are issues about jurisdiction it is helpful to sort them out in advance, or at least before the action has gone any further.

In addition, there are some situations where a submission to the jurisdiction of the Court will make a difference to whether or not a Court can proceed. If a defendant is not submitting to the jurisdiction of the Court, the appropriate course is to file a conditional notice of intention to appear. Once that has been done, an appropriate application can be made to set aside the proceeding.

However, I think that rule 135 is a matter of some significance and it ought not to be overlooked and disregarded.

Nevertheless, there has been some argument heard in relation to this matter.

There were four particular matters which Counsel for the defendants sought to raise if leave was given.

The first was the joinder of the two plaintiffs in the one action. Whether the plaintiffs can be properly joined depends on Rule 65(1), which depends on whether, if separate proceedings were brought by each of them, common questions of law or fact may arise in all the proceedings, or if all rights to relief sought in the proceeding, whether joint, several or alternative, arise out of the same transaction or event or series of transactions or events.

Plainly (b) is much narrower than (a) but it is an alternative. It is sufficient if (a) is satisfied.

It will be apparent from the fact that both plaintiffs claim to be defamed by the same publication that there will be numerous common issues of law, and quite possibly issues of fact, in relation to the publication, even though the way in which it is said to defame each of the plaintiffs is different.

But, apart from that, the way in which the letter is said to defame each of the plaintiffs, and particularly the way in which the letter is said to defame the second plaintiff, is really based on a failure of the second plaintiff to prevent or to attempt to prevent some conduct by the first plaintiff which is alleged in the letter and which is the subject of the allegation that the letter defamed the first plaintiff.

Accordingly, the factual basis for the claim by the second plaintiff that he was defamed is closely related to the factual basis of the claim by the first plaintiff that he was defamed.

Turning to the matters raised in the defence, most of these are specific to one plaintiff or the other. However, some of them, particularly a plea of qualified privilege under section 30 of the Defamation Act, are raised in respect of both plaintiffs, although it may be that aspects of the operation of that defence will apply differently in relation to the two plaintiffs.

However, evidence as to the circumstances under which the letter was written and matters of that nature will apply, I would think, to the claims of both plaintiffs.

I was referred to a number of authorities dealing with cases where actions for defamation or libel or slander have been joined and criticised and cases where it was held that they were not properly joined, but those involved different and more restrictive rules as to joinder of parties.

I have not been referred to any cases where claims for defamation by two plaintiffs which were joined under the Uniform Civil Procedure Rules have been held not to be properly joined.

It would seem to me that, where both plaintiffs are alleging they were defamed by the one written publication, it would be quite appropriate for the plaintiffs to be joined in the one action. Undoubtedly, this will give rise to some separate issues, indeed quite possibly a number of separate issues for the two plaintiffs, but there is no particular reason why that should cause any great difficulty so long as the different claims by the separate plaintiffs are kept steadily in mind.

I note that no party has elected trial by jury and in those circumstances any difficulty that might have been produced if the matter went before a jury will be avoided. I would think that there should be no difficulty in a Judge keeping track of the two claims by the plaintiffs and dealing with each of them appropriately, and there is no reason why the plaintiffs cannot be joined under Rule 65(1).

The second matter sought to be raised, in particular, was that the statement of claim was defective because of a failure to plead the whole of the letter.

Although the statement of claim sets out substantial extracts from the letter, the letter itself is a good deal longer.

Reliance was placed, in particular, on the decision of Robinson v. ABC [2004] QCA 319. In that matter, the Court was concerned with a defamation which was alleged to have occurred in the course of a television program and it was alleged that part of what had been pleaded was taken out of context.

In the judgment of the President, her Honour said:

It seems to be established that the question of the context and the meaning to be determined by the whole context is something that leads to the conclusion that a plaintiff is not entitled to plead part of something which has been published if that has the effect of taking what has been published out of context.

I must say that simply on the basis of reading those reasons it is not immediately obvious why this approach should lead to the conclusion that the full context has to be pleaded by the plaintiff rather than the defendant, or indeed why any relevant context could not simply be a matter of evidence at a trial. However that rule seems to have been treated by the majority of the Court of Appeal as leading to that result.

So the question then becomes, it seems to me, whether what has been pleaded in the statement of claim is taken out of context. In relation to this, the full letter is before me.

It contains certain other background facts which have been pruned out, no doubt to make the pleading more manageable, but it seems to me that this is not a case where what has been pleaded is taken out of context.

It is certainly not a case where the publication becomes innocuous in context, in the sense that there has been pleaded the bane without the antidote, as the President mentioned. It seems to me that the reference to the other parts which were not included in the pleading really does not have the effect of defusing any defamatory aspect of what has been pleaded. If anything, it rather suggests that the position of the plaintiffs, perhaps particularly the first plaintiff, was worse than it otherwise would have been, or perhaps a little worse than was indicated by the specific matters in the part that has been pleaded. That is because it implies that there has been previous conduct on his part which would justify some concern about the possibility of his behaving in such a fashion.

It seems to me that in so far as there has been some selection from the letter it is really to operate to confine the case the plaintiff seeks to make rather than to produce the difficulty identified by the president in the passage which I have quoted.

In these circumstances it does not seem to me that any proper complaint can be made about the failure to plead the entire letter. Reference was also made to the effect of section 25 of the 2005 Defamation Act, which is the new statutory defence of justification.

I think it is sufficient for me to say that the clause, “of which the plaintiff complains,” in my opinion relates to or is dependent on the word “imputations” rather than the word “matter” and that the section is directed to requiring justification of the imputations rather than justification of the matter pleaded. It follows there is no substance to that particular argument. I think it would be surprising if it was interpreted otherwise. That would be consistent with the law in this area in the past and one would not expect to see a change of that nature.

It was also submitted that the expression of the defamatory imputations was unsatisfactory. Indeed at one point counsel for the defendant seemed to be suggesting that they were so unsatisfactory as to amount to an abuse of process. This, it seemed to me, rapidly degenerated into a factual argument about what had actually occurred on the occasions which were the subject of the letter, and that is plainly not a matter to be decided on an application of this nature.

So far as paragraph 9 in its amended form is concerned, it does seem to me that as pleas of imputations the contents of paragraph 9 cannot be criticised. Part of paragraph 10, which is concerned with the imputations against the second plaintiff, alleges as a particular imputation that he, “was an unfit parent.” It was submitted that this was impossibly wide and lacked particularity and reference was made to the decision of the Court of Appeal in Cashman v Hinchcliffe [2003] QCA 161.

In that case a majority of the Court of Appeal took the view that an allegation that the plaintiff has a disregard for the law was an imputation which was too wide and ambiguous and which therefore ought to be struck out. As to that White J delivered the principal judgment and said that:

Jerrard JA said in relation to that particular allegation that:

I note that Justice Williams JA who dissented on this point said, among other things, that:

His Honour again adopted the approach that it was important to look at the expression in the context presented by the case.

It seems to me, with respect, that all three members of the Court of Appeal have that approach, and that the difference between their Honours is that the majority took the view that, in the particular context that applied there, the words were unfairly ambiguous.

There are certainly plenty of old authority that very general words can be defamatory and can stand as a defamatory imputation.

Counsel for the plaintiffs referred to cases where “unbrotherly” and “a breach of duty” were sufficient to stand as a defamatory imputation and to one where it was said that acting and being prepared to act dishonourably was a sufficient imputation.

I think that it is necessary to look at what has been pleaded and what has been said in the context of the particular publication and to see whether, in that context, the imputation is unfairly ambiguous so as to be embarrassing.

In the present case, it seems to me that the context really admits of only one meaning for the concept of being an unfit parent, and that was that he was unfit in failing to prevent his son from behaving in the way in which the letter alleged the son had behaved. In the particular context of this case, it seems to me that that expression is not unfairly ambiguous and accordingly, I would not strike it out as an embarrassing pleading.

Finally, counsel for the defendants sought to advance the case that the letter, taken as a whole and in the context, and given the limited publication alleged, was so obviously covered by the defence of qualified privilege that it would be appropriate to strike out the action now.

There has been no application under rule 293 foreshadowed in the application filed and at the time it was filed no application under rule 293 could have been made because no notice of intention to defend had been filed.

In addition, of course, no proper notice, as required by the rules, has been given in an application under rule 293, and I would not entertain such an application without proper notice given the particular significance of it.

I suppose an application under rule 171 could be advanced on this basis but it really only needs to be identified as an application of this nature for it to be seen that such an application could not succeed on this basis, because the defence of qualified privilege will not necessarily succeed.

Apart from anything else, it would depend on whether the plaintiff could succeed in showing malice. Although that has not yet been pleaded the time for pleading it has not yet closed and counsel for the plaintiffs did foreshadow that malice would be alleged against the defendants.

In these circumstances, it plainly would not be appropriate to strike out the action. Clearly, the General Steel test could not be satisfied in relation to this action on that basis in circumstances where there is a possibility of a plea of malice, let alone one where a plea of malice has been foreshadowed.

Although standing alone the letter does tend to make one think of the defence of qualified privilege, whether it is successful would be a matter for a trial. These are the particular matters sought to be ventilated by counsel for the plaintiffs.

In the circumstances, I think there is no substance in any of them, and for that reason, and because of the importance of rule 135, and because I think the application really was wholly misconceived, I will not give leave and the application is dismissed with costs.

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HIS HONOUR: Well, there may be problems with the defence but I do not think that it can be said that the defence is simply a defence to the original statement of claim. It was filed after the amended statement of claim, I assume after the amended statement of claim was served.

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HIS HONOUR: Well, then, I will not entertain that application.