Grenning v Ware[2005] QSC 82

SUPREME COURT OF QUEENSLAND

[1] This is an application by the defendants in an action for damages for defamation begun on 23 June 1999 for an order that the action be dismissed, or alternatively for an order that the third further amended statement of claim filed on 8 February 2005 be struck out, and further or alternatively for an order that the plaintiff file and serve on the defendants an affidavit concerning documents or classes of documents relevant to the plaintiff’s claim for impairment of earning capacity.

[2] In applying for the first-mentioned order the defendants rely on rules 5(4) and 371(2) of the Uniform Civil Procedure Rules 1999.  Rule 5(4) provides that the court may impose appropriate sanctions if a party does not comply with the rules, which include of course rule 5(3) which provides that, in a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.  Rule 371(2) gives the court wide powers, subject to rules 372 and 373, when there has been a failure to comply with the rules.  (Rule 372 provides that an application for an order under rule 371 must set out details of the failure to comply with the rules, and rule 373 provides that the court may not set aside a proceeding or an originating process on the ground the proceeding was started by the incorrect originating process.)

[3] In applying for the order striking out the third further amended statement of claim, the defendants rely first on rule 171, which gives the court the power to strike out all or part of a pleading if it has a tendency to prejudice or delay the fair trial of the proceeding (rule 171(1)(b) and (2)), and secondly on rule 371.

[4] In applying for the last-mentioned order the defendants rely on rule 223(2) which provides that the court may order a party to a proceeding to file and serve on another party an affidavit stating (a) that a specified document or class of documents does not exist or has never existed, or (b) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.

[5] The plaintiff’s case arises from eight articles that appeared in the Courier- Mail and Sunday Mail newspapers beginning on 14 August 1997 and ending on 12 September 1998.  The plaintiff does not adopt the course of suing over each individual article, i.e., pleading the imputations alleged to have been conveyed by each article and in the case of an article not referring to him by name furnishing particulars of facts whereby he could be identified as the person referred to in the article. 

[6] The plaintiff’s case is formulated as one resting on specified passages published in the articles conveying defamatory meanings ‘when read in conjunction and in their totality’:  paras 4 and 4A of the third further amended statement of claim.  The quoted words first appeared in an amended statement of claim filed on 23 November 1999.  On 5 April 2000 the defendants’ solicitors requested further and better particulars of the identities of the persons who, it was alleged, had read the articles in that way, and in a response dated 28 July 2000 the plaintiff’s solicitors gave the names of three people:  Councillor Yvonne Chapman, Mayor of the Pine Rivers Shire; Mr Allan Grice M.L.A.; and Mr Geoffrey Stevenson, legal ombudsman.  Although this is a newspaper case, it is not, as the particulars made clear, one in which the plaintiff’s case relies on the width or unrestricted nature of the publication, but is rather one based on the precise identity of certain readers:  see Lazarus v. Deutsche Lufthansa AG [1985] 1 N.S.W.L.R. 188 at pp. 192-193.  It follows that it became clear in July 2000 that the plaintiff’s action was based upon publication to only three people, publication to each constituting a separate cause of action:  Emmerton v. University of Sydney [1970] 2 N.S.W.R. 633, at p. 634. 

[7] In para. 1.11 of the third further amended statement of claim, however, the plaintiff has introduced forty-five new names of readers who, it was made clear at the hearing of the application, are asserted to be in the same category as the original three.  The defendants object that the plaintiff has thereby sought to introduce forty-five new causes of action at a time when the limitation period has expired without first having sought the leave of the court to do so under rule 376, under which the court may give leave to make an amendment to include a new cause of action after the end of the relevant period of limitation.  The limitation period would have ended at the latest six years after 12 September 1998:  Limitation of Actions Act 1974, s.10.  On behalf of the defendants it was asserted that the amendments introducing the new causes of action should be struck out, as happened in similar circumstances in Emmerton v. University of Sydney. 

[8] On behalf of the plaintiff it was argued that the addition of the forty-five new names did not introduce forty-five new causes of action because the publication itself is ‘the event’, as it was put, and that all that the amendments had done was to give further particulars of those to whom the publication had been made when they read the articles.  But as the plaintiff’s case is based upon identifying particular readers that argument must fail, in my view.  It 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.  On this application the amendments introducing the forty-five new causes of action must be struck out.   But the defendants seek wider relief than that.  The defendants assert that the plaintiff’s failure to proceed with expedition in pursuing his claim, the inadequacies of the pleading of his case, and his ‘cavalier’ approach to his disclosure obligations concerning his claim for damages for impairment of earning capacity justify the dismissal of his action. 

[9] I began by referring to a pleading point and it is convenient to continue with the subject of the plaintiff’s pleading his case.  I should mention that the introduction of the forty-five names in the third further amended statement of claim was made in a way that did not make it clear whether what was intended was to introduce new readers into the same category as the original three or whether they were introduced for some other purpose.  That matter was clarified, as I have related, at the hearing.  Other inadequacies in the plaintiff’s pleading are said to be:  the pleading of irrelevant allegations of the defendants’ understanding and belief, lack of precision and unnecessary repetition in pleading imputations, allegations in para. 6 concerning the states of mind of the defendants without complying with rule 150(2), and failing to give adequate particulars of a claim to nearly $250,000 in respect of impairment of earning capacity.

[10] It was conceded on behalf of the plaintiff at the hearing of the application that the allegations as to the understanding and belief of the defendants pleaded in paras 3G(a) and 3H(a) of the third further amended statement of claim should be struck out.  Then on behalf of the defendants a number of challenges were made to the way in which the alleged defamatory imputations were pleaded.

[11] In para. 4.2.2 the following imputation was pleaded:  ‘The plaintiff had been investigated by police in respect of allegations of the receipt of illegal pornography being photographs which contained paedophilia (“the investigations”)’.  The defendants contend, correctly in my view, that that allegation fails to specify the act or condition asserted of or attributed to the plaintiff by the words complained of:  see the discussion by McMurdo J. in Magub v. Hinchliffe [2004] Q.S.C. 4 at paras 8-14.  It should be remembered that rule 149(1)(c) requires that a pleading must state specifically any matter that if not stated specifically may take another party by surprise.  It may also be that any defamatory imputation intended to be pleaded in para. 4.2.2 is a mere repetition of an imputation pleaded with more precision elsewhere, and so renders the third further amended statement of claim to that extent prolix, contrary to rule 149(1)(a) which requires that a pleading must be as brief as the nature of the case permits.

[12] In para. 4.2.4 the following imputation was pleaded:  ‘That the plaintiff was, or may be, guilty of the receipt of illegal pornographic material’.  On behalf of the defendants it was argued, correctly in my view, that two imputations were thereby rolled into one, the second, that the plaintiff ‘may be’ guilty etc., being impermissibly imprecise. 

[13] In para. 4.2.12 an imputation that the plaintiff was or had been a subscriber to illegal pornography is pleaded, and in para. 4.2.14 that the content of the illegal pornographic material at his premises was such that it warranted the raiding of those premises by the police.  It was argued for the defendants that those imputations do not differ in substance and therefore infringe rule 149(1)(a).  I am not persuaded that those imputations are in substance the same:  the first focussing on subscription, the latter on possession of illegal pornographic material at a specified place.  A different act is thus attributed to the plaintiff in para. 4.2.12 from that attributed in para. 4.2.14. 

[14] In para. 4.2.16 to 4.2.18 these imputations are pleaded:

4.2.16The Commissioner of Police, on reasonable grounds, considered the Plaintiff to be a paedophile;

4.2.17The Commissioner of Police, on reasonable grounds, considered the Plaintiff to have had a sexual attraction to male children

4.2.18The Commissioner of Police had kept a file which contained a record of criminal conduct by the Plaintiff

In those paragraphs the state of mind and an act of the Commissioner is pleaded without specifying the act or condition asserted or attributed to the plaintiff.

[15] In para. 6 the plaintiff makes allegations concerning the defendants’ states of mind in publishing the matters complained of:  their knowledge, intentions, reckless indifference, and contumelious disregard of the plaintiff’s rights.  Rule 150(2) requires that any fact from which any of the matters mentioned in rule 150(1) is claimed to be an inference must be specifically pleaded, and among the latter are malice or ill will (rule 150(1)(i)) and motive, intention or other condition of mind, including knowledge or notice (rule 150(1)(k)).  The plaintiff has therefore failed to comply with rule 150(2), confining himself to bare allegations as to the matters I have listed. 

[16] In para. 6A.4 it is alleged that the plaintiff has been unable to obtain employment ‘as an advisor to political parties or any position of comparable standing commensurate with his training and expertise’ as a consequence of perceptions created by the alleged defamation.  In para. 6A.5 it is alleged that the plaintiff ‘was only able to obtain employment in his current position as the principal advisor of corporate relations with the Queensland Law Society on a consultancy basis in or about October 2002, and on a full-time basis in or about March 2003’.  Para. 6A.6 continues by alleging that the plaintiff has ‘as a consequence thereof suffered special loss and damages by way of the income which he otherwise would have derived’.  In para. 7 the plaintiff gives particulars of the calculation of the loss of income as:  general damages $60,000 (para. 7.1), lost wages from being unable to obtain employment as a consequence of the defamation $249,038.46, made up of $126,538.46 ($35,000 per annum from 14 August 1997 to March 2001) and $122,500 ($70,000 per annum from March 2001 to December 2002) (para. 7.2), and $50,000 aggravated and exemplary damages (para. 7.3). 

[17] The argument before me was directed to the claim to the $249,038.46.  It is not sufficiently clear from the pleading how it is calculated, so whether it is characterized as a claim to general damages (as to which see Arthur Robinson (Grafton) Pty Ltd v. Carter (1970) 122 C.L.R. 649 at p. 658 per Barwick C.J.) or to special damages rule 155 has not been complied with.  That is because rule 155(2)(c) requires that a party claiming general damages must include particulars of the basis on which the amount claimed has been worked out or estimated, and rule 155(4) requires a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.  The obvious deficiency in the particulars is in the failure to explain why a loss of $35,000 per annum is the basis of the claim to March 2001, and then a loss of $70,000 per annum applies until the end of 2002.  Attached to an affidavit sworn by the plaintiff on 15 March 2002 and filed on that day is a copy of a resumé of his employment history which shows that from July 1998 to March 2001 he was employed by a member of the Commonwealth parliament, and that for the two years after that he was employed as a public relations and government relations consultant and as a newspaper columnist of the Courier-Mail, but no particulars are given as to how the figures of $35,000 per annum and $70,000 per annum were arrived at.  Among the particulars of paragraph 3A filed on 8 February 2005 there appears some explanation of how the $35,000 per annum was calculated for the period ‘from 1997’ without further explanation as to why the $70,000 per annum applied later.  The particulars tend to obscure rather than clarify the claim.  Further particulars are clearly required to comply with the rules.

[18] An offhand approach to the plaintiff’s disclosure obligations provided for in rule 211 is quite evident in what is before me.  In the plaintiff’s affidavit filed on 15 March 2005, for instance, he reveals that documents in relation to his income and sources of income from 14 August 1997 to 30 June 2004 have ceased to exist as he discarded them:  para. 2.4.  (I interpret that statement as an admission that even documents that did exist relating to income and sources of income after he began his action have been ‘discarded’).  That affidavit was filed in an effort to anticipate an order under rule 223(2), but clearly enough further elaboration is required.  At the hearing the plaintiff through his counsel accepted that a further affidavit could be provided, and would be if required.

[19] The action has not reached the point at which it is ready for trial.  In an affidavit filed on 15 March 2005 Ms Luciana Salerno, the solicitor now having conduct of the matter on behalf of the plaintiff, gives a short history of the action.  A number of versions of the statement of claim have been filed:  on 24 August 1999, 23 November 1999, 2 January 2003, 29 January 2003, 21 October 2004, and 8 February 2005.  The defendants clearly have an argument for the first order they seek, that the proceeding be dismissed on the grounds they rely on:  that the plaintiff has not complied with the rules of pleading, that he has not complied with his obligations to give disclosure, and that he has failed to proceed with expedition - in particular failing to formulate his claim expeditiously and failing to give disclosure of documents and particulars relevant to his claim for impairment of earning capacity.  All three grounds have substance, but I am persuaded that an outcome to this application less Draconian is the proper one.  As Ms Salerno has demonstrated in her account, there have been periods in 2000, 2001, 2002, and 2004 when efforts were made to settle the case.

[20] It appears to me that the plaintiff should be given a further opportunity to get his case in order, so far as that is possible, by reviewing his statement of claim bearing in mind the inadequacies of the present version, and by rectifying any deficiency, so far as that is possible in disclosure.  As to the latter it appears that the plaintiff has indeed failed to comply with his obligations as to disclosure.  His discarding relevant documents may deserve censure, and cause difficulties for the defendants.  But his actions could present even greater difficulties for him since they might be thought to reflect adversely on the credibility of his claim:  cf. the remarks of Thomas J.A. in Quinlan v. Rothwell [2002] 1 Qd. R. 647 at p. 659.

[21] I conclude that the allegations concerning the forty-five new causes of action, the words  ‘may be’ in para. 4.2.4, and paras 3(G)(a), 3(H)(a), 4.2.2, 4.2.16, 4.2.17, and 4.2.18 of the third further amended statement of claim should be struck out, but that the plaintiff should be given leave to replead.  The plaintiff should be required to provide further particulars of the facts pleaded in paras 6, 6A.4, 6A.5, 6A.6, and 7.2, and to file and serve an affidavit of the kind sought by the defendants.  I shall invite further submissions on the form of the orders to be made, and on the costs of this application and those of an application by the defendants filed on 15 November 2004.