Sheppard v Nine Network Australia Pty. Ltd.
[2018] QDC 158
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- Unreported Judgment
- Appeal Determined (QCA)
- Sheppard v Nine Network Australia Pty. Ltd.[2018] QDC 158
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Sheppard v Nine Network Australia Pty. Ltd.[2018] QDC 158
Sheppard v Nine Network Australia Pty. Ltd.[2018] QDC 158
DISTRICT COURT OF QUEENSLAND
CITATION: | Sheppard v Nine Network Australia Pty Ltd & Ors [2018] QDC 158 |
PARTIES: | GRAHAM SHEPPARD (plaintiff) v NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 (first defendant) and TCN CHANNEL NINE PTY LTD ACN 001 549 560 (second defendant) and QUEENSLAND TELEVISION LIMITED ACN 009 674 373 (third defendant) |
FILE NO/S: | 1418 of 2017 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 10 August 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 August 2018 |
JUDGE: | Rosengren DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – FRIVOLOUS PLEADING – CAUSING DELAY IN THE PROCEEDINGS - where the plaintiff seeks an order striking out three paragraphs in the defence – where the defendant opposes the application on the basis that regard must be had to the cumulative effect of the paragraphs as well as paragraphs of the truth defence which are unchallenged – where the defendant has elected a jury trial - where the defence case is a circumstantial one – where the defendant pleads common law and statutory justification – whether or not the impugned paragraphs are facts which support a reasonable and definite inference that each of the imputations are substantially true Defamation Act 2005 (Qld), ss 25, 30 Uniform Civil Procedure Rules 1999, r 171 Queensland Newspapers Propriety Limited v Palmer [2012] 2 Qd R 139 – cited Woolcott v Seeger [2010] WASC 19 - cited John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 - cited Luxton v Vines (1952) 85 CLR 352 – cited Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 - cited Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 - cited Williams and Humbert Ltd v W & H Trade Marks [1986] 1 AC 368 - cited Rush v Nationwide News [2018] FCA 357 - cited Gallagher v Destiny Publications Pty Ltd [2015] WASC 475 - cited Transport Industries Insurance Co Ltd v Longmuir [1997] VR 125 – cited |
COUNSEL: | Mr A P J Collins for the plaintiff Mr P McCafferty for the defendants |
SOLICITORS: | O'Shea Lawyers for the plaintiff Mark O'Brien Legal for the defendants |
- [1]The plaintiff has sued the defendants for damages for defamation. He seeks an order that seven subparagraphs of the fourth amended defence be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (‘the UCPR’). Of these, four have been resolved without the need for the determination of the court.
- [2]There was no relevant dispute between the parties as to either the substantive law which informed the analysis of the plaintiff’s underlying cause of action in defamation, or the procedural law by which the plaintiff’s application for strike outs should be resolved.
- [3]Paragraph 6 of the application also seeks a direction that the costs of the jury be paid for by the defendants. The plaintiff now concedes that this direction is unnecessary. This is because section 65 of the Jury Act 1995 (Qld) obliges the party to a civil trial who requires a jury, to pay to the registrar the relevant jury fees.[1]
Relevant background
- [4]The plaintiff’s claim arises out of a publication which occurred on a national television program, known as ‘A Current Affair’. The plaintiff was approached by a film crew, unannounced, and became one of the subjects of a broadcast on 19 July 2016. It is alleged the broadcast conveyed the following two imputations:
- (i)whilst his father was alive, the plaintiff had dishonestly caused monies belonging to his father to be withdrawn from his father’s bank account for the benefit of the plaintiff; and
- (ii)the plaintiff was an untrustworthy person.
- [5]At trial, the jury will be required to determine three issues. First, is whether the imputations are conveyed by the broadcast to the ordinary, reasonable reader. Second, is whether each proven imputation is defamatory in that they would have a tendency to lower the plaintiff’s reputation in the estimation of right-thinking members of the community. Third, is whether the defendants can rely on any defences to defeat the plaintiff’s claim.
- [6]In the fourth amended defence (‘the defence’), the defendants have pleaded the common law and statutory defences of justification and the statutory defence of qualified privilege. The statutory defences are pursuant to sections 25 and 30 respectively of the Defamation Act 2005 (Qld).
- [7]As to the defences of justification, the facts and matters relied upon in support of this defence can be found in paragraph 20 of the defence. Relevantly, they are as follows:
- (i)The plaintiff provided assistance to his elderly father Thomas Sheppard (who was born on 30 July 1918 and is now deceased) at a time where his health was declining, including suffering from dementia which was, by no later than 8 March 2010, assessed as significant.
- (ii)The plaintiff’s father was a pensioner whose only source of income was a Government pension. That pension was paid fortnightly into one of two bank accounts the plaintiff’s father held with the Commonwealth Bank of Australia (number 41645007662). The other account was number 416410335187 (‘the CBA accounts’).
- (iii)The plaintiff had authority to solely operate the CBA accounts.
- (iv)Part of the assistance provided by the plaintiff to his father, included the plaintiff driving his father to the CBA and, on occasions, withdrawing cash from the CBA accounts.
- (v)The bank records of the plaintiff’s father and also of the plaintiff for the relevant periods identified in the defence reveal that:
- (a)between July 2009 and December 2010, on twenty separate occasions, after funds were credited to one the plaintiff’s father’s CBA accounts (41645007662) from Veterans Affairs, a specific amount was withdrawn in cash. On the same day, an amount (being less than the total amount withdrawn) was credited to a second CBA account in the name of the plaintiff’s father (416410335187);
- (b)then on either that same day or in some cases, the following day,[2]a further amount was credited to a Suncorp account either in the plaintiff’s name or in the joint names of the plaintiff and his wife;
- (c)the aggregate of the two sums credited to CBA 416410335187 and the relevant Suncorp account, was less than the total amount withdrawn from CBA 41645007662. Mostly, the difference is a few hundred dollars;
- (d)on two of the twenty occasions (August 2009 and November 2009) the aggregate of the two sums paid into 416410335187 and Suncorp (the same day) were identical to the amount withdrawn from 41645007662 (again that same day). On nine occasions, the difference was between $100-200 and on eight occasions, the difference was between $200-400.
- (vi)The plaintiff’s father did not authorise the plaintiff to deposit the sums identified into the relevant Suncorp account.
- [8]There are further matters the defendants rely upon in support of the inference that the plaintiff, in essence, syphoned off a significant proportion of his father’s pension, by keeping cash and depositing the remainder into his own bank account between July 2009 and December 2010. These matters in substance, allege the following:
- (i)The assistance the plaintiff provided to his father was gratuitous;
- (ii)During the period where the twenty transactions occurred, the plaintiff had no income or means which could explain the deposits into the Suncorp account, other than amounts received from Centrelink and the Wesley Mission which were in any event paid directly into the relevant Suncorp account;
- (iii)In the years prior and during the time of the transactions the plaintiff was in a poor financial position because:
- (a)he had been unemployed prior to 30 July 2009 (the date of the first of the twenty transactions) and had been unemployed since 7 March 2000;
- (b)the plaintiff was bankrupt between at least the period 8 March 2000 to 9 March 2003;[3]
- (c)in a Debtor’s Petition and Statement of Affairs the plaintiff provided information including that his sole source of income was a pension in the amount of $7,020 per annum, that he had not been employed for an unspecified period, and had not lodged a tax return for over 10 years.[4]
Paragraphs no longer in issue
- [9]Paragraphs 20(g)(v)(D), 20(f)(iii), 20(g)(i) and 20(g)(iv) are no longer the subject of the strike-out application. The reasons for this are as follows:
- (i)in relation to 20(g)(v)(D), the defendants have agreed to remove any reference to Wesley Mission and the plaintiff’s wife;
- (ii)in relation to 20(f)(iii), the defendants have agreed to remove the words “which explain the deposits made into the Plaintiff’s Suncorp bank account (identified above)”;
- (iii)in relation to 20(g)(i), the defendants have agreed to insert the words ‘as identified’ so it reads “the assistance (as identified) provided to Thomas Sheppard by the Plaintiff was gratuitous”; and
- (iv)in relation to 20(g)(iv), the defendants have agreed to remove the words “which explain the deposits made into the Plaintiff’s Suncorp bank account (identified above)”.
Paragraphs in dispute
- [10]Rule 171(2) of UCPR provides that a court may at any stage of proceedings strike out all or part of a pleading. The plaintiff contends that I should strike out paragraphs 20(g)(v)(A)(II), 20(g)(v)(B) and 20(g)(v)(C) of the defence on the basis that they fail to disclose a defence, are frivolous and have a tendency to delay the fair trial of the proceeding. These are circumstances specifically identified under r 171(1) of UCPR which enliven the strike out discretion under subrule 2. Further, it is submitted that when pleading dishonesty, there must be some facts or circumstances which taken together, imply or at least very strongly suggest that there must have been dishonestly on the part of the plaintiff.
- [11]The defendants oppose the striking out of these three paragraphs. This is on the basis that regard must be had to the cumulative effect of these paragraphs as well as those paragraphs of the justification defences which are not challenged by the plaintiff. It was correctly observed by counsel for the defendants that the court must determine whether the particulars that have been provided with respect to the justification defences are capable of proving the truth of the two defamatory imputations in their natural and ordinary meaning. The case is a circumstantial one. The defendants contend that each of the challenged paragraphs are facts which support a reasonable and definite inference[5]that each of the imputations are substantially true.
- [12]The court’s discretion to strike out pleadings should only be exercised in clear cases.[6]Such a step is not to be undertaken lightly.[7]Other various expressions have been used in this context. It has been said that the matter must be so obviously untenable that it cannot possibly succeed. The court must determine whether the particulars that have been provided, taken at their highest, are capable of proving the truth of the defamatory imputations that are sought to be justified.[8]The particulars cannot be picked off one by one in assessing whether they are insufficient to support a plea of justification, but regard must be had to the cumulative effect of those particulars.[9]In the end it depends on the degree of assurance with which the requisite conclusion is or can be arrived at.[10]
- [13]The effect of striking out the three paragraphs of the defence means that the defendants would not be permitted to rely on the plaintiff’s unemployment dating back to 2000, his bankruptcy prior to mid-March 2003 and his Debtor’s Petition and Statement of Affairs dated 7 March 2000, as supporting the inference that he, in depositing the amounts in his Suncorp accounts commencing on 30 July 2009 (‘the first transaction’), was dishonest and untruthful.
- [14]I am persuaded that there is nothing in either of the pleaded paragraphs relating to the plaintiff’s bankruptcy (paragraph 20(g)(v)(B)) or the Debtor’s Petition and Statement of Affairs (paragraph 20(g)(v)(C)) that is capable of being rationally considered by a jury as part of the defendants’ circumstantial case.
- [15]These paragraphs can be distinguished from the paragraph to the effect that the plaintiff had been unemployed since 7 March 2000 (paragraph 20(g)(v)(A)(II)). This is relevant, in circumstances where the status of the plaintiff’s employment is pleaded to be a continuing state of affairs for the nine or so years leading up to the first transaction. It is submitted on behalf of the plaintiff that the pleading is frivolous and has a tendency to delay the fair trial of the proceeding where disclosure of documents going back some nine years may be required. Counsel for the defendant observed that if the duty of disclosure is thought to be overly burdensome, an application can be made seeking an order for the plaintiff to be relieved from his disclosure duty in respect to this issue. I am satisfied that this paragraph is part of the circumstantial case with respect to the motive of the plaintiff for having dishonestly taken his father’s money. It is but one fact together with the other facts in paragraph 20 of the defence, which might provide a compelling basis from which to draw the inference that the imputations are substantially true.
- [16]On the other hand, there is a significant gap in time of some six years between the plaintiff’s bankruptcy and the first transaction. Any potential connection is even more remote with respect to the content of the plaintiff’s Debtor’s Petition and Statement of Affairs dated 9 March 2000. It is a document that was completed more than nine years prior to the first transaction. The debt stated to be owed at that time was only in the order of $2,310.56. Irrespective of the quantum of the debt, the effect of the plaintiff’s bankruptcy subsequent to the completion of that document, is that the liability for the debt was eliminated.
- [17]Therefore, I am of the view that neither of these remaining two paragraphs contain facts that might be accepted by a jury as consistent with the plaintiff’s poor financial position commencing at the time of the first transaction in mid-2009. The paragraphs do not plead facts or circumstances which taken together with the other paragraphs relevant to the justification defences, are capable of supporting a reasonable and definite inference that the imputations are substantially true. I consider that it is untenable to suggest that they could be.
Conclusion
- [18]Accordingly, upon the above analysis, I consider it is appropriate to make the following orders:
- The application to strike out paragraph 20(g)(v)(A)(II) of the fourth amended defence is refused.
- The application to strike out paragraphs 20(g)(v)(B) and 20(g)(v)(C) of the fourth amended defence is granted and these paragraphs are struck out.
- The parties have liberty to apply.
- [19]I will hear the parties as to costs.
Footnotes
[1] These are prescribed under s 12 of the Jury Regulation 2017.
[2] Six of the twenty Suncorp items were in fact paid in the following day, namely July 2009 and July, September, October, November and December 2010.
[3] Paragraph 5 of the application seeks to strike out this allegation being paragraph 20(g)(v)(B) of the defence.
[4] Paragraph 5 of the application seeks to strike out this allegation, being paragraph 20(g)(v)(C) of the defence.
[5] Luxton v Vines (1952) 85 CLR 352, 358 (Dixon, Fullagar and Kitto JJ).
[6] See, for example, Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 at [6] per Mackenzie J.
[7] Lord Templeman in Williams and Humbert Ltd v W & H Trade Marks [1986] 1 AC 368 at 435 to 436.
[8] Rush v Nationwide News [2018] FCA 357 at [40] to [54]. The relevant rule considered by Wigney J was r 16.21 of the Federal Court Rules 2011 (Cth) which is in all relevant respects identical to UCPR 171.
[9] Gallagher v Destiny Publications Pty Ltd [2015] WASC 475, [54] (Kenneth Martin J). See also Transport Industries Insurance Co Ltd v Longmuir [1997] VR 125, 12-128 (Winneke P), 141 (Tadgell JA).
[10] Favell v Queensland Newspapers Pty Ltd [2004] QCA 393 at [2].