JTD v PDL (No. 3)[2023] QDC 5

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff (JTD) claims from the defendant (PDL) damages for defamation. This is the third decision concerning the pleadings. In JTD v PDL^[1] the plaintiff, as applicant, sought a ruling that paragraphs of the Further Amended Statement of Claim be deemed as admissions pursuant to rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). The application was premised upon a submission that the defence filed by the defendant did not engage the plaintiff’s pleaded case. In respect of some of the pleadings, which were concerned with the identification of alleged defamatory publications, Judge Long SC found that the ‘broad approach’ to pleading taken by the plaintiff meant that a similarly broad response by the defendant was not contrary to rule 166(4) and no deemed admissions arose.^[2] In relation to parts of the pleadings concerned with the meaning or imputations to be attributed to the defamatory publications, Judge Long found that the defendant’s ‘blanket denial’ did not comply with rule 166(4).^[3]
2. [2]
   The matter came back before Judge Long to consider the form of orders to be made following his Honour’s reasons. Further issues had also arisen: the defendant sought leave to withdraw the deemed admissions concerning imputations and the plaintiff wanted any published judgment to be anonymised. The result was the decision in JTD v PDL (No. 2),^[4] in which Judge Long gave the defendant leave to withdraw the deemed admissions, ordered the judgments be anonymised, and gave directions for the filing of amended pleadings.
3. [3]
   No doubt in a response to Judge Long’s observations about the plaintiff’s ‘broad approach’ to the identification of the alleged defamatory publications, and pursuant to his Honour’s directions, the plaintiff filed a Third Further Amended Statement of Claim (‘3FASOC’) on 8 July 2022. The filing of the 3FASOC has in turn prompted the present application by the defendant for orders disallowing some amendments on the basis that they plead new causes of action that would be barred by the expiration of the limitation period found in section 10AA of the Limitations of Actions Act 1974 (Qld). The plaintiff opposes the application.
4. [4]
   Some preliminary observations may be made. Many amendments to a pleading may be made without leave. As well, the court has a general power, conferred by rule 375 of the UCPR, to allow the amendment of a pleading. But the general power is subject to rule 376 which relevantly provides

376 Amendment after limitation period

3. (1)
   This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.

…

3. (2)
   The court may give leave to make an amendment to include a new cause of action only if—

1. (a)
   the court considers it appropriate; and

2. (b)
   the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

5. [5]
   The defendant argues that the effect of the 3FASOC is to introduce new causes of action, for which the plaintiff required leave. Reliance is then placed on rule 379, which is set out below.

379 Disallowance of amendment

3. (1)
   If a party makes an amendment without leave before the filing of the request for trial date, another party may, within 8 days after service on the party of the amendment, apply to the court to disallow all or part of the amendment.

3. (2)
   On the application, the court may make an order it considers appropriate.

6. [6]
   The purported reliance by the defendant upon rule 379 may raise an interesting question: is this properly an application to disallow amendments to the pleadings or should it be an application for part of them to be struck out? There is a statement in the Supreme Court to the effect that rule 379 is not concerned with amendments improperly made, and that an improper pleading for which leave was required but not given is liable to be struck out pursuant to rule 371 (and, by extension, rule 171). Fryberg J said as much in Reynolds v Aluma-Lite Products Pty Ltd,^[5] where his Honour considered rule 379 was concerned only with amendments made pursuant to rule 378, which permits a pleading to be amended as often as necessary before the filing of a request for trial date. That is, rule 378 describes the ‘amendment without leave before the filing of the request for trial date’ to which rule 379 subsequently refers. If that approach is correct rule 379 is not engaged in this proceeding, but the defendant may not be without a remedy. Such might be found in rule 371, which permits the court to ‘make another order that could be made under [the] rules’ in the event of a failure to comply with the rules, and in rule 171 which permits a court to strike out all or part of a pleading where it has a tendency to prejudice or delay the fair trial of the proceeding or be an abuse of the process of the court.
7. [7]
   It must be noted, however, that a more expansive approach to rule 379 appears to have been accepted by the Court of Appeal in Westpac Banking Corporation v Hughes & Anor^[6] and the Supreme Court in Mineral Resources Engineering Services Pty Ltd as Trustee for the Meakin Investment Trust v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia.^[7] If it were necessary to decide, I would prefer the view expressed by Fryberg J in Reynolds, which would see applications of the present kind dealt with under rules 371 and 171. But the question of which approach is the proper one need not be answered in this application for at least two reasons. First, it was not asked by the parties who argued the matter on the basis that rule 379 applied. Secondly, the essential considerations are no different however the defendant’s application is approached. It is critical either way to determine whether the plaintiff improperly filed an amended pleading for which leave was required and, if so, whether the plaintiff can and should have leave to amend pursuant to rule 376(4). As such I will proceed on the premise stated in the application that rule 379 is engaged.
8. [8]
   The plaintiff’s pleadings identify five alleged defamatory publications. This application is only concerned with the second, third, fourth and fifth publications. It is convenient to deal with the pleadings relating to each publication in turn. In doing so I will set out and consider the relevant parts of the Further Amended Statement of Claim (‘FASOC’) and the 3FASOC.^[8] I note that a Second Further Amended Statement of Claim was filed on 27 January 2022 (court document 18), but the defendant does not suggest it raised any new cause of action compared to the FASOC. In the present application it is sufficient to compare the FASOC and 3FASOC to determine if the latter introduced any new cause of action. But before doing so I will consider the legal and procedural framework by which this application is to be decided.

Legal principles

9. [9]
   Pertinent rules of the UCPR are set out above. Of immediate relevance is rule 376.^[9] The ‘relevant period of limitation’ for rule 376 is, for this application, to be found in section 10AA of the Limitations of Actions Act 1974 (Qld) (‘LAA’). Section 10AA provides, inter alia, that ‘[a]n action on a cause of action for defamation must not be brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.’^[10] The publications complained of in the FASOC, being causes of action that were first pleaded in the original Statement of Claim, are not affected by this provision. Similarly, if the causes of action now pleaded in the 3FASOC are not new, the plaintiff does not require the court’s leave and the defendant’s application must be dismissed. If the 3FASOC does contain a new cause, or causes, of action the question becomes whether the plaintiff should have leave to plead the cause or causes in accordance with rule 376(4)(b)^[11] or whether the amendments should be disallowed.
10. [10]
    The exercise required by rule 376 involves

an analysis of both the statement of claim and the amended statement of claim to see whether the facts pleaded in the latter, not included in the former, were ‘simply further particulars of the cause already claimed’, or whether they described a cause of action which did not arise from the facts originally pleaded.^[12]

11. [11]
    ‘Cause of action’ has the same meaning in rule 376 as it has according to the LAA.^[13] Having said that, it is an undefined term in the legislation. In considering limitation statutes, courts have had regard to its common law meaning.^[14] One such statement concerning the common law is that ‘[t]he concept of a "cause of action" would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue.’^[15] The importance of the identification of the fact or facts giving rise to the right to sue has sometimes led to an attempt to distinguish between ‘material’ and other facts. It has been said that ‘if an amendment introduces a new material fact, then a new cause of action is introduced, even if the cause of action is of the same type or category as one pleaded before the amendment.’^[16] But an approach ascribing critical importance to so-called ‘material’ facts has been eschewed by the Queensland Court of Appeal.
12. [12]
    In McQueen v Mount Isa Mines Ltd,^[17] Brown J, with whom Fraser and McMurdo JJA agreed, rejected the notion that ‘that any material facts supporting the relief claimed constitute a new cause of action’ for the purpose of rule 376.^[18] In support of this statement, her Honour cited the decision of PD McMurdo J in Borsato v Campbell & Ors.^[19] There, in a passage that is helpful in the present application, his Honour stated (footnotes omitted)

The term “cause of action” was defined in Cooke v Gill as being “every fact which is material to be proved to entitle the plaintiff to succeed”, a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland subsequently endorsed as a “fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended”. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described.

13. [13]
    The ‘broad brush’ approach to comparison endorsed by the Court of Appeal in Thomas v The State of Queensland is encapsulated in the statement of a trial judge, approved by the Court of Appeal in Westpac Banking Corporation v Hughes & Anor.^[20] There it was said that ‘[f]or the purposes of r 376(4), it seems to me that a cause of action is not “new”, if it is reasonably apparent from a party’s pleadings, prior to the amendment, that the party sought to raise that cause of action.’ Pedantry in analysing the pleadings is to be avoided,^[21] and sometimes the result of the comparison is that there is ‘an unclear dividing line between facts which involve a new cause of action and those which are simply further particulars of the cause already claimed.’^[22]
14. [14]
    It is also necessary to bear in mind that this proceeding concerns alleged defamatory statements made to identified persons. Publication is the foundation of the cause of action for defamation. It follows that it is important, if not essential, for the plaintiff to identify when, where and to whom any defamatory publication was made. This is an aspect of the suit brought by the plaintiff that has important consequences when searching for the line between further particulars and a new cause of action.

The second alleged publication

15. [15]
    This second alleged publication concerns a statement made by the defendant to two police officers in July 2020, during which the defendant alleged she had been raped by the plaintiff. The FASOC pleaded as follows.

12. 6.
    On or about 1 July 2020, the Defendant made a statement to the Queensland Police Service about the Plaintiff’s alleged conduct in the following terms (the Second Publication First Police Statement):

[JTD] uses illegal drugs including ecstasy and cocaine and he has been coming to work affected by drugs. He has turned up to work on numerous occasions still under the influence of drugs, either ecstasy or cocaine. I know that because would be sweating excessively and in an agitated state. He would also brag about it at work, telling me that he was buzzing or ripping from the night before and he would tell me that I had to do his work for him because he was still drug affected from the night before. A few days ago, on 29 June, he was sweating excessively, he was agitated and slammed a stapler down on my desk in front of me, very aggressively.

[JTD] has touched me inappropriately on numerous occasions during the past eight months.

[JTD] regularly brought a black revolver or pistol to work and was flashing it around. He was holding that when he forced me to remove my clothes and my underwear and then he raped me a number of times in the office while he was holding the gun. He held that black revolver or pistol to my head and put the barrel of it into my mouth. While he was raping me, he put his hands around my neck in a strangling motion and he put his index finger in a way that resembles a revolver or pistol and pushing his fingers against my head. He also ran his hand across my throat, simulating that he was cutting my throat while he was raping me.

On other occasions during the past eight months, he forced me to perform oral sex on him at work.

He has raped me three times.

On several occasions, while he was raping me, he said to me:

I am watching you 24/7; Stop crying [PDL], I get angry when you cry [PDL], you know I get very angry; Stop crying [PDL] or I will tie your hand up again; Okay, I am not going to shoot you today, but I might do it tomorrow, you just don’t know what day I might choose to do it; So, go home tonight and pretend nothing has happened, but I can get you at any time; You are under my control; Instead of bringing a gun, I will bring a knife, so you tell me which one you prefer me to use; If you make me made, (sic) well, you know what will happen, I’ll show you; If you say anything, I will kill you and I will kill everyone around you.

Particulars

12. A.
    The Second Publication First Police Statement was made orally.

12. B.
    The Second Publication First Police Statement was made in person.

12. C.
    The Second Publication First Police Statement was made to one or more of:

12. 1.
    Detective Senior Constable Jonathan [C]; and

12. 2.
    additional officers, not presently known to the plaintiff.

12. 7.
    The words used by the Defendant in the Second Publication, either in their natural and ordinary meaning or by way of false innuendo, conveyed, and were intended to convey, the following defamatory meanings of and concerning the Plaintiff:

12. C.
    The Plaintiff raped [PDL] on at least three occasions by engaging in penile-vaginal intercourse with her when she was not consenting.

12. D.
    The Plaintiff forced [PDL] to perform fellatio upon him.

12. E.
    The plaintiff is a rapist.

12. F.
    The Plaintiff sexually harassed [PDL] at work for eight months, including by repeatedly touching her inappropriately.

12. G.
    The Plaintiff has been stalking [PDL].

12. H.
    The Plaintiff is a murderous psychopath.

12. I.
    The Plaintiff is planning to murder [PDL].

12. J.
    The Plaintiff threatened that he would kill [PDL] and anyone who was around her at the time.

12. K.
    The Plaintiff has been coming to work so affected by drugs that he was unable to perform his duties.

12. L.
    The Plaintiff is an adulterer.

12. M.
    The Plaintiff is not a fit and proper person to hold a real estate agent’s licence.

16. [16]
    In the 3FASOC, this allegation was pleaded in the following terms.

12. 5.
    On or about 1 2 July 2020, the Defendant published made a statement to the Queensland Police Service about the Plaintiff’s alleged conduct in the following terms (the Second Publication) a transcript of which is set out in Schedule 1 to this Statement of Claim:

Particulars

1. (a)
   The Second publication was made at the Sunshine Coast University Hospital to:

3. (1)
   Detective Jody [A]; and

3. (2)
   a male police officer named Peter (the surname is known to the Plaintiff).

17. [17]
    The summary of the statements attributed to the defendant set out above in italics are shown as being deleted and the 3FASOC continues.

12. 6.
    The words used by the Defendant in the Second Publication, either in their natural and ordinary meaning or by way of false innuendo, conveyed, and were intended to convey, the following defamatory meanings of and concerning the Plaintiff (references to lines are references to line numbers in Schedule 2^[23] of this Statement of Claim):

12. C.
    The Plaintiff raped the Defendant at knife point while he was also armed with a gun by engaging in penile-vaginal intercourse with her at their place of employment when she was not consenting (conveyed by lines 92-94, 119-121, 134, 135, 152-155, 178, 183-185, 188, 189, 210-226, 305, 306, 351-365, 393-402, 416-430, 465, 501, 561-565, 613 to 614);

12. D.
    The Plaintiff sexually harassed the Defendant at work for eighteen months, including by repeatedly touching her inappropriately (conveyed by lines 456-463).

18. [18]
    The meanings or imputations pleaded at C to M of paragraph 7 of the FASOC are marked as being deleted.^[24]
19. [19]
    Some significant differences in the cases pleaded may immediately be noted. It was first alleged that the publication was ‘on or about 1 July 2020’ and was made to a police officer, Detective Senior Constable Jonathon [C], and other police officers not known to the plaintiff. The actual statements alleged to have been made by the defendant were summarised rather than pleaded verbatim. By the time of the 3FASOC the allegation was that the publication occurred on 2 July 2020 at the Sunshine Coast University Hospital and was made to Detective Jody [A] and another male police officer named Peter. The Schedule to the 3FASOC is plainly to be understood as a transcript of a recording made at the time by police and in the possession of the plaintiff. The 3FASOC refers to specific lines in the transcript as being the words actually spoken by the defendant amounting to defamatory statements.
20. [20]
    As the applicant submits, the effect of the amendments is to abandon the second publication as alleged in the FASOC and to attempt to substitute a substantially different alleged defamatory publication. Publication of defamatory material is the core of the cause of action upon which the plaintiff sues. The amendments change not only the identity of the persons to whom the publication was allegedly made, but also the substance of the defamatory material by substituting the transcript for the broad descriptions of the FASOC.
21. [21]
    It may be true, as the plaintiff submits, that it is in theory sufficient to plead that a defendant published matter that was defamatory of the plaintiff to an unknown person. If such were pleaded, the later identification of the person to whom the matter was published would arguably be no more than particulars. But that is not what the plaintiff chose to do. The plaintiff in the FASOC pleaded a case which alleged, as material facts, the identity of at least one person to whom the publication was made. That was abandoned in the 3FASOC, and a different police officer was identified. This change is significant. As was said by Newnes JA in Rossen v Airey^[25]

A fundamental fact necessary to give rise to a cause of action in defamation is the fact of publication of defamatory material to a third party. The fact that defamatory material was published by X to A is a quite different fact to the publication of the same material by X to B. As the primary judge observed, they are different causes of action potentially giving rise to different defences and a different measure of damages… It is not to the point that the content of the material published is the same.

22. [22]
    This change in the persons to whom the alleged publication occurred is sufficient to mean that the 3FASOC pleads a new cause of action. It is no answer, as the plaintiff attempted to argue, that in newspaper or mass media (or social media) cases, different considerations may arise. This is not a newspaper or social media case. The case pleaded by the plaintiff did not rely upon inference to prove publication – it was alleged the defamatory matter had been published to at least one identified police officer, the identity of whom had changed by the time of the 3FASOC. To this may be added the change in the detail of the publication. The general summary of the FASOC was replaced in the 3FASOC with what must be intended to be taken as the actual words spoken by the defendant. And the 11 imputations said to have arisen from the defamatory publication were replaced by two. These matters contribute to my conclusion that the amended pleading concerning the second alleged publication is no mere refinement of the cause pleaded in the FASOC. The allegations are not such as would have been reasonably apparent from a perusal of the FASOC. Subject to a consideration of rule 376(4), and whether the plaintiff can and should have leave to plead a new cause of action, the amendment embodied in paragraph 5 of the 3FASOC should be disallowed.
23. [23]
    Paragraph 6 of the 3FASOC may involve different considerations. As it is presently pleaded it is inextricably linked with paragraph 5 (and the schedule to which paragraph 5 refers). Paragraph 6 should not be allowed to stand in its present form. But, as the plaintiff submitted, a refinement, or reduction in the number of meanings or imputations said to flow from a publication would not usually raise a new cause of action. It may be that the plaintiff can replead what is paragraph 6 of the 3FASOC in a suitable way. But for now, given its attachment to paragraph 5, if paragraph 5 is disallowed paragraph 6 must be as well.

The third alleged publication

24. [24]
    The third alleged defamatory publication concerns a further conversation between the defendant and some police officers during which the defendant repeated allegations against the plaintiff similar to those made in the second alleged publication. The relevant paragraphs of the FASOC are set out below.

12. 8.
    On or about 2 July 2020, the Defendant made a statement to the Queensland Police Service about the Plaintiff’s alleged conduct (the Third Publication Second Police Statement) in the same or substantially the same words as those used by the Defendant in the Second Publication.

Particulars

12. A.
    The Third Publication Second Police Statement was made orally.

12. B.
    The Third Publication Second Police Statement was made in person.

12. C.
    The Third Publication Second Police Statement was video recorded.

12. D.
    The Third Publication Second Police Statement was made to one or more of:

12. 1.
    Detective Senior Constable Jonathan [C];

12. 2.
    Detective Jody [A]; and

12. 3.
    additional officers, not presently known to the Plaintiff.

12. E.
    Further particulars of the Second Publication will be supplied following Disclosure.

12. 9.
    The words used by the Defendant in the Third Publication, either in their natural and ordinary meaning or by way of false innuendo, conveyed, and were intended to convey, the same meaning as those set out in paragraph 7 [of the FASOC].

25. [25]
    Paragraph 7 of the FASOC listed at C to M the 11 defamatory meanings said to have been conveyed by the publication. The balance of paragraph 9 of the FASOC noted the deletion of particulars of what had earlier been alleged as the oral statements of the defendant.
26. [26]
    In the 3FASOC the third alleged publication is pleaded as set out below.

12. 7.
    On or about 2 Between 9-15 July 2020, the Defendant published made a statement to the Queensland Police Service about the Plaintiff’s alleged conduct (the Third Publication) a transcript of which is set out in Schedule 2 to this Statement of Claim in the same or substantially the same words as those used by the Defendant in the Second Publication

Particulars

a. The Third Publication was made orally.

b.   The Third Publication was made in person.

c. The Third Publication was video recorded.

d. The Third Publication was published made to:

12. 1.
    Detective Senior Constable Jonathan [C];

12. 2.
    Detective Jody [A]; and

12. 3.
    additional officers, not presently known to the Plaintiff.

12. 8.
    In the context of:

1. (a)
   the Second Publication having already been published to Detective Jody [A]; and

2. (b)
   Detective Senior Constable Jonathan [C] being involved in the investigation of the allegations contained in the Second Publication;

the words used by the Defendant in the Third Publication, either in their natural and ordinary meaning or by way of false innuendo, conveyed, and were intended to convey, that the same meaning as those set out in paragraph 7 above. (references to lines are references to line numbers in Schedule 2 of this Statement of Claim):

12. E.
    The Plaintiff had raped the Defendant at knife point (conveyed by lines 17, 20, 22, 23, 29, 162-165, 170, 171, 191-195, 231);

12. F.
    The Plaintiff had threatened to shoot the Defendant and everyone around her if she told anyone that the Plaintiff had been raping her (conveyed by lines 215-217, 233-235);

12. G.
    The Plaintiff had brought a gun to work and used it to threaten the Defendant (conveyed by lines 44, 88, 90, 99 112, 113, 118, 125, 232, 235);

12. H.
    The Plaintiff had used a gun to force the defendant to take off all her clothes at work (conveyed by lines 94-103, 120, 121);

12. I.
    The Plaintiff had told the Defendant that other men were coming to the office and that she was required to dance naked for them (conveyed by lines 106, 107)

12. J.
    The Plaintiff had tied the Defendant’s hands up while she was naked at her place of employment (conveyed by lines 108-110, 120);

12. K.
    The Plaintiff had raped the Defendant three to four times (conveyed by lines 226 to 227).

27. [27]
    The starting point is a consideration of what material facts were pleaded in each instance. For the FASOC, this calls for an examination of paragraph 7 in the context of the whole of the pleading. It is clear from this exercise that the material facts of the third alleged publication according to the FASOC were that:

• It occurred very soon after the second alleged publication (on or about 2 July 2020 when the second publication was said to have occurred on or about 1 July 2020).
• The defendant made oral statements, in person, to Detective Senior Constable Jonathon [C], Detective Jody [A], and other police officers (which were also video recorded).
• The defendant’s oral statements on this occasion were the same or substantially the same as were alleged concerning the second publication in paragraph 6 of the FASOC.

28. [28]
    In contrast, the 3FASOC alleges a different case. It pleads that the third alleged publication:

• Happened between 9 and 15 July 2020 (at least a week after the second alleged publication).
• Was not made in person to the police officers. It was instead in the form of what seems to be three separate video recordings published to the same police officers.
• Did not repeat the same, or substantially the same, words as the second publication. Instead, different words as shown in schedule 2 to the 3FASOC are alleged which, in the context of the second alleged publication, are said to convey defamatory meanings.

29. [29]
    While the publications described in the FASOC and 3FASOC were both made to the same police officers, the circumstances are otherwise very different. Most significant of the differences is that the alleged publication is no longer a repetition (in substance at least) of the second publication. It is now an allegation of dissimilar words (those in schedule 2) that must be considered in another context (as described in paragraph 8 of the 3FASOC) to be understood as conveying a defamatory meaning. The 3FASOC describes a case concerning the third alleged publication that would not have been reasonably apparent upon perusal of the FASOC. Subject to the potential application of rule 376(4), the amendment contained in paragraphs 7 and 8 of the 3FASOC should be disallowed.
30. [30]
    The defendant also objected to amendments to paragraph 14 of the 3FASOC, which go with the amendments to paragraphs 7 and 8. Paragraph 14 pleads the consequence that the plaintiff was suspended from his employment because of the defendant’s allegations. To the extent the amendments rely upon the new cause of action alleged they should also be disallowed.

The fourth alleged publication

31. [31]
    The fourth alleged publication concerns statements the defendant is said to have made to hospital staff upon her admission in early July 2020. It was pleaded in the FASOC in the following terms.

12. 16.
    On or about 2 July 2020, the Defendant attended upon and was admitted to [a hospital].

12. 17.
    In the course of her intake or admission to the Hospital, the Defendant said to hospital nursing and administrative staff the same or substantially the same words as those used by the Defendant in the Second Publication made a series of oral statements to the same effect as the Third Publication (the Fourth Publication).

Particulars

12. A.
    The identity of the individual nursing and administrative staff members of the hospital to whom the Fourth Publication was made is presently unknown to the Plaintiff but Further particulars of the Fourth Publication will be supplied following disclosure.

32. [32]
    The further particulars foreshadowed by the plaintiff emerged by the time of the 3FASOC. The terms of the third alleged publication were recast as follows.

12. 16.
    In the course of her intake or admission to the Hospital, the Defendant said to [hospital] nursing and administrative staff the same or substantially the same words as those used by the Defendant in the Second Publication;

“I was raped by my colleague, [JTD].”

“We work together at [redacted].”

“He has been raping me for 12 to 15 months.”

“I just remembered this 2 or 3 days ago.”

(the Fourth Publication).

Particulars

a. The Fourth Publication was made orally to:

12. 1.
    Forensic Nurse [redacted] on 2 July 2020;

12. 2.
    Nurse [redacted] on 2 July 2020;

12. 3.
    Nurse [redacted] on 3 July 2020;

12. 4.
    Medical Officer [redacted] on 3 July 2020.

16A. The words used by the Defendant in the Fourth Publication, in their natural and ordinary meaning conveyed, and were intended to convey, that:

L.  The Plaintiff had raped the Defendant repeatedly over a period of up to 15 months.

33. [33]
    Again, an analysis of what is to be understood as the material facts for each set of pleadings assists in deciding the defendant’s application. The allegations in the FASOC are to the effect that on or about 2 July 2020 the defendant told several hospital staff of the matters then said to constitute the second alleged publication.^[26] These included that the plaintiff, a work colleague, raped the defendant on several occasions extending back some eight months. In the 3FASOC the defamatory statements are pleaded with more detail but remain essentially the same. The later pleading still alleges that the defamatory publications occurred on or about 2 July 2020 and that they were made to staff at the hospital. The nature of the alleged defamatory statements was (at least) presaged in the FASOC, as was the place and location of the publication. The contention remains, in essence, that the defendant made untrue allegations to hospital staff that the plaintiff had committed serious sexual offences.
34. [34]
    Of course, the 3FASOC names the four people to whom the alleged defamatory statements were made. But this additional information amounts to further particulars of the cause of action pleaded in the FASOC. I do not accept the defendant’s submission that the 3FASOC ‘abandoned’ the fourth publication and pleaded a different one. A fair reading of the FASOC would have made a reasonable reader aware of the allegation that is refined in the 3FASOC. These amendments do not plead a new cause of action.

The fifth alleged publication

35. [35]
    The defendant’s objection to the amendments concerning the fifth alleged publication is limited to paragraphs 20 and 20A of the 3FASOC. But to understand what, if any, differences there are between the pleadings some further context is necessary. The allegation in the FASOC was in the limited terms set out below.

12. 20.
    On a date unknown to the plaintiff, but believed to be approximately 21 August 2020, the Defendant attended a meeting with [CR] of [redacted].^[27]

12. 21.
    In the course of the meeting with [CR], the Defendant re-published the statements pleaded in paragraphs 5, 7 and 9 of this Statement of Claim (the Fifth Publication).

Particulars

12. A.
    The Fifth Publication consisted of the Defendant:

12. 1.
    making oral statements to [CR]; and

12. 2.
    providing video recordings to [CR].

B. Further particulars of the Fifth Publication will be supplied following Disclosure.

36. [36]
    As may be seen, the allegation, at the time of the FASOC, did not set out what was said by the defendant which conveyed a defamatory meaning beyond the assertion that some earlier statements were ‘re-published’. The references to paragraphs 5, 7 and 9 are confusing. Paragraph 5 of the FASOC pleads the defamatory meanings said to have been conveyed by the first alleged publication. Paragraphs 7 and 9 are similarly concerned with meaning or imputation. It is to be assumed that this pleading in the FASOC should have referred to paragraphs 4, 6 and 8, which relate to each of the first, second and third alleged publications. Understood in that way, the material facts of the fifth alleged publication, as pleaded in the FASOC, were to the following effect.

• The publication occurred in mid-to-late August 2020.
• The defendant made oral statements and provided video recordings to [CR].
• The statements and video recordings repeated the matters alleged as the first, second and third publications. The second alleged publication was the broad allegation set out at paragraph [15] above and, at the time, the third alleged publication was itself said to be a repetition of the second alleged publication.

37. [37]
    It was in this context that Judge Long observed of the plaintiff’s ‘broad approach’ to the pleadings that

the question legitimately arises as to how such an approach by the party bearing the onus in the proceeding, including in respect of proof of the words used, requires the respondent to explain, in any more specific particularity, what part or parts of such an allegation may be admitted.^[28]

38. [38]
    His Honour’s statement was made in considering the plaintiff’s application about deemed admissions but is illustrative of the unsatisfactory nature of the earlier pleading.
39. [39]
    In contrast, the fifth alleged publication is pleaded in the 3FASOC as set out below.

12. 17.
    As a direct result of the Defendant’s false report to the Employer and the Queensland Police Service, on or about 14 July 2020, the Employer engaged an independent investigator, [redacted], to investigate the allegations pleaded in paragraphs 5, 6 and 8 of this Statement of Claim, and those allegations became known to employees of that business.

12. 18.
    The Plaintiff was identified to [redacted] by name.

12. 19.
    On a date unknown to the Plaintiff, but believed to be approximately 21 28 August 2020, the Defendant attended a meeting with [CR] of [redacted].

12. 20.
    In the course of the meeting with [CR], the Defendant re-published the matter (or substantially the same matter) as that set out in Schedule 1 and re-published the matter set out in Schedule 2 statements pleaded in paragraphs 5, 6 and 8 of this Statement of Claim (the Fifth Publication).

Particulars

A. The Fifth Publication consisted of the Defendant:

12. 1.
    making oral statements to [CR]; and

12. 2.
    providing video recordings to [CR].

20A. The words used by the Defendant in the Fifth Publication, either in their natural and ordinary meaning or by way of false innuendo, conveyed, and were intent to convey, the following defamatory meanings of and concerning the Plaintiff:

12. M.
    The Plaintiff raped the Defendant at knife point while he was also armed with a gun by engaging in penile-vaginal intercourse with her at their place of employment when she was not consenting;

12. N.
    The Plaintiff sexually harassed the Defendant at work for eighteen months, including by repeatedly touching her inappropriately,

12. O.
    The Plaintiff had raped the Defendant at knife point;

12. P.
    The Plaintiff had threatened to shoot the Defendant and everyone around her if she told anyone that the Plaintiff had been raping her;

12. Q.
    The Plaintiff had brought a gun to work and used it to threaten the Defendant;

12. R.
    The Plaintiff had used a gun at work to force the Defendant to take off all her clothes at work;

12. S.
    The Plaintiff had told the Defendant that other men were coming to the office and that she was required to dance naked for them;

12. T.
    The Plaintiff had tied the Defendant’s hands up while she was naked at her place of employment;

12. U.
    The Plaintiff had raped the Defendant three of four times.

40. [40]
    The amended pleadings concerning the fifth alleged publication reduce to the following.

• The publication occurred in late August 2020.
• The defendant ‘re-published’ the matters pleaded in detail in Schedule 1, and which were broadly summarised in paragraph 6 of the FASOC.
• The defendant ‘re-published’ the matters set out in Schedule 2, being what was said by her in the video-recordings earlier discussed.

41. [41]
    The change in the date of publication is, in this instance, immaterial. And, unlike the second alleged publication, there has been no change in the identity of the person to whom the publication was made. The assertion that the defendant published to [CR] the video recording is maintained. What has changed is the detail of what was said. The claim that the Defendant repeated the first alleged publication has been abandoned. The asserted repetition of the second alleged publication has altered from the summary in paragraph 6 of the FASOC to the transcript in Schedule 1 to the 3FASOC.
42. [42]
    Determining the present application as it concerns the fifth alleged publication is not easy. That arises directly from the broad nature of the claims made in the FASOC. As was stated by Bond J in Firstmac Ltd & Ors v Hunt & Hunt (a firm)^[29]

[T]he adequacy of the original pleading will always be relevant, because a plaintiff cannot be permitted to avoid the operation of the rules by pleading a hopelessly general original pleading so as to make it easier subsequently to contend that proposed amendments are either not new or arise out of substantially the same (hopelessly general) facts. In Draney v Barry, Pincus JA (with whom McMurdo P and Thomas JA agreed generally) made the following observations:

... one cannot evade the plain intention of O. 32 r. 1(5), or its counterpart r. 376(4), by inserting in a pleading a vague allegation raising no identifiable cause of action. Such an allegation would be liable to be struck out as not setting out the material facts... But the fact that para. 12(j) was not struck out does not oblige the Court to ignore its vacuous character, when considering whether an amendment will if allowed add or substitute a “new cause of action”. That view appears, in my opinion, the proper one to take under both the new and the old Rules, but especially under the former, which require that the rules be applied so as to avoid undue technicality and to facilitate their purpose: r. 5(2). The spirit of the UCP Rules would not be respected if the question whether what are in substance new causes of action should be allowed to be added out of time is made to depend upon the presence or absence in the existing pleading of an allegation of misconduct which is so vague as to be devoid of any ascertainable meaning.

43. [43]
    In this case, the first pleading could properly be described as vague. But it would be going too far to describe it as ‘vacuous’ or ‘hopelessly general’, or to conclude that it did not raise an identifiable cause of action. As set out at paragraph [36] above, the FASOC asserts as material facts that in August 2020 the defendant said or published to [CR] statements that repeated the first, second and third publications as then alleged. The material facts alleged in the 3FASOC are not so far removed as to constitute a new cause of action. Critical to this conclusion is the fact that the ‘when’ (August 2020), ‘how’ (oral statements and publication of video recordings) and ‘to whom’ ([CR]) of the publication has not materially changed. I am conscious that the content of what was allegedly said or published has changed to a degree, including the apparent abandonment of the re-publication of the first alleged publication. But in the absence of other, more substantial changes to the facts as alleged, these may be considered further particulars of the cause of action identified in the FASOC.
44. [44]
    This is a case where the location of the dividing line between an amendment which introduces a new cause of action and one which does not is difficult to determine.^[30] But I am unable to conclude that the attempt to better plead the case in the 3FASOC introduced a new cause of action.

Leave to amend the pleadings?

45. [45]
    Having concluded that the amended pleadings about the second and third alleged publications introduce new causes of action, it is necessary to consider the argument concerning leave to amend. It must first be observed that the plaintiff has not applied for leave pursuant to rule 376(4) and has not put on any evidence justifying or explaining why leave should be given. I would note what was said by Helman J in Grenning v Ware & Ors^[31] that

[i]t will not be appropriate, as was suggested on behalf of the plaintiff, to consider applying rule 376 on this, the defendants’, application. It will be a matter for the plaintiff to consider whether he wishes to make an application under that rule with proper supporting evidence.

46. [46]
    On an application pursuant to rule 376(4) evidence that might explain why the plaintiff failed to raise the new cause of action in time would surely be an important, if not critical, consideration in deciding if it is ‘appropriate’ to give leave.^[32] This seems to me to be a powerful argument against considering the plaintiff’s de facto application for leave. But the defendant did not seek to resist the plaintiff’s argument on this basis. Instead, the defendant argued that when it concerns defamation actions, rule 376(4) is ousted by specific provisions of the Limitation of Actions Act 1974 (Qld) (‘LAA’), or at least the considerations that would govern the application of rule 376(4) in such cases are constrained by that Act. Reliance was placed upon the statement of Flanagan J in Argus Probity Auditors and Advisors Pty Ltd v Queensland Rail Ltd^[33] to the effect that rule 376 is excluded ‘because s 32A(3) [of the LAA] states that a court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in the subsection (2)’.
47. [47]
    I do not think this statement can be read, as the defendant would wish to, as authority for the proposition that ‘rule 376(4) doesn’t have any work to do … or is ousted by the operation of section 32A’.^[34] That is an overly broad proposition for several reasons. First, this statement of Flanagan J is a single sentence in a decision concerning an unopposed application for an extension of time pursuant to section 32A of the LAA. Secondly, it was not a considered exposition of the relationship between section 32A and rule 376(4). Thirdly, the statement could not be considered part of the ratio of his Honour’s decision. The defendant’s submission asks the statement of Flanagan J to bear more weight than it can. To the extent the defendant’s submission implied that the plaintiff cannot seek the leave of the court to amend its pleading pursuant to rule 376, I think that is wrong. But that is not to say that section 32A and rule 376 occupy separate universes – they are part of the overall statutory framework governing the pleadings in a suit for defamation. It is therefore necessary to consider the relevant statutory provisions to ascertain the effect of section 32A on an application of this kind.
48. [48]
    Rule 376(4) has been mentioned. It permits a court to give leave to amend a pleading that introduces a new cause of action only where ‘the court considers it appropriate’ and the new cause of action arises out of the same, or substantially the same, facts as a cause of action that has already been claimed. For reasons which will emerge, it is unnecessary to decide whether the new causes of action raised by the amendments satisfy the second limb of this test. The first limb requires consideration of whether it is ‘appropriate’ to give leave to amend. Whether or not leave is ‘appropriate’ in a particular case will depend on the facts and circumstances of that case. There could be no exhaustive list of considerations that are universally relevant to any application pursuant to rule 376. Context is important.
49. [49]
    Here, the proceeding is a suit for defamation. The context in which it is to be decided whether it is appropriate to give leave must include the statutes that limit a potential plaintiff’s ability to commence proceedings. It is in this regard that sections 10AA and 32A of the LAA, which are set out below, have relevance.^[35]

10AA Defamation actions

An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of.

32A Defamation Actions

3. (1)
   A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

3. (2)
   A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.

3. (3)
   A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).

3. (4)
   An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.

50. [50]
    It may be seen from the text of rule 376 on the one hand, and sections 10AA and 32A on the other, that the latter is concerned with the commencement of a proceeding and the former with amendment to a proceeding that is already underway. While these are separate topics there may obviously be overlap, as is the case here where the plaintiff’s amendments seek to introduce new causes of action that would otherwise fall foul of section 10AA of the LAA. The LAA prescribes limitation periods for a variety of causes of action. In some cases, it is possible to apply for an extension of the limitation period. Actions for defamation are an example of actions where an extension is possible, subject to the satisfaction of the criteria expressed in section 32A. Having regard to this context, it seems to me that in deciding whether it is ‘appropriate’ to give leave pursuant to section 376(4), the criteria in section 32A are a relevant consideration.
51. [51]
    It may be that there is little practical difference between an outcome where rule 376(4) is excluded and section 32A covers the field, and one where rule 376(4) applies but is to be decided having regard to the criteria in section 32A. But that is not a reason for accepting the construction proposed by the defendant.
52. [52]
    One other matter concerning rule 376(4) need be mentioned. In some circumstances an amendment by leave which introduces a new cause of action will have the effect of avoiding the limitation period in the LAA.^[36] Orders may be made pursuant to rule 387 to deal with this situation, but in cases where it is not clear that a relevant limitation period was current at the date the proceeding was started but has since ended, caution must be exercised to avoid injustice to one party or another. Even where, as here, there is no dispute about the operation of the limitation period, care must be taken because there has been no application for leave to amend, no evidence relevant to this issue tendered, and no argument about how, if leave were granted, this issue be resolved.
53. [53]
    The result, in my view, is that in deciding whether it is ‘appropriate’ to give the plaintiff leave pursuant to rule 376 it is necessary to consider the following.

• The amended pleading introduces new causes of action outside of the period of limitation and in circumstances where rule 376 applies.
• To give leave, at least in unfettered terms, would arguably deprive the defendant of possible reliance on a limitation defence.
• The plaintiff has made no application for leave pursuant to rule 376(4), much less an application for an extension of time pursuant to section 32A of the LAA.
• There is no evidence upon which I can decide if there is any satisfactory explanation for the failure to introduce the new causes of action within time, much less whether it was ‘not reasonable’ to commence the action within time. The result is I cannot judge factors of delay or prejudice as might be raised by either rule 5 of the UCPR or the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University.^[37]

54. [54]
    In these circumstances it would not be appropriate to give the plaintiff leave to amend to introduce new causes of action.
55. [55]
    Because I have reached the conclusion that it would not be ‘appropriate’ to give leave to amend the pleadings to include the new causes of action, it is unnecessary to consider the second part of the test posed by rule 376(4). Having said that, it seems to me that the factors that lead me to conclude the amendments give rise to new causes of action would present an obstacle to a conclusion that the new causes arise out of the same or substantially similar facts.

Conclusion

56. [56]
    The result is that the application will be allowed in part and there will be an order that the amendments contained in paragraphs 5, 6, 7, 8 and 14 of the third further amended statement of claim filed on 8 July 2022 are disallowed.
57. [57]
    I will hear the parties as to the costs of the application, either ‘on the papers’ if the parties agree or otherwise on a date to be fixed in consultation with the registry.