McGrane v Channel Seven Brisbane Pty Ltd
[2012] QSC 133
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- Unreported Judgment
- McGrane v Channel Seven Brisbane Pty Ltd[2012] QSC 133
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McGrane v Channel Seven Brisbane Pty Ltd[2012] QSC 133
McGrane v Channel Seven Brisbane Pty Ltd[2012] QSC 133
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 22 May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 February 2012 |
JUDGE: | Daubney J |
ORDERS: | (a)The claim filed 7 April 2011 and the amended statement of claim filed 9 December 2011 are struck out; (b)The plaintiff shall pay the defendant’s costs of and incidental to the proceeding, including the costs of this application, to be assessed. |
CATCHWORDS: | DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – IN GENERAL – where the plaintiff is a convicted murderer and claims to have been defamed in a television program broadcast – where the plaintiff commenced an action in defamation – where the plaintiff’s statement of claim was struck out and the plaintiff was given leave to re-plead – where the plaintiff filed an amended statement of claim – where the plaintiff claims the program contained a number of defamatory imputations and innuendoes – where the plaintiff seeks some $95,000,000 in damages – where the plaintiff failed to articulate his amended pleadings in an intelligible way – where the defendant seeks orders dismissing the plaintiff’s claim and striking out his amended statement of claim –– whether the plaintiff’s claim and statement of claim should be struck out Trade Practices Act 1974 (Cth), ss 52, 65A, 82 Banque Commerciale SA, en Liquidation v Akhil Holdings ltd (1990) 169 CLR 279; [1990] HCA 11 Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81 Jackson v Goldsmith (1950) 81 CLR 446 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 McGrane v BTQ Channel 7 [2011] QSC 290 R v McGrane [2008] QCA 42 R v McGrane [2002] QCA 173 Robinson v Laws & Anor [2001] QCA 122 San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (1996) 162 CLR 340; [1986] HCA 68 Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 |
COUNSEL: | The plaintiff appeared on his own behalf J M Horton for the defendant |
SOLICITORS: | The plaintiff appeared on his own behalf Addison Lawyers for the defendant |
[1] By a claim and statement of claim filed on 7 April 2011, the plaintiff commenced a defamation action against the defendant claiming some $49.85 million in damages.
[2] On 29 September 2011, Martin J struck out the statement of claim, and gave the plaintiff leave to re-plead.[1]
[3] On 1 November 2011, the plaintiff filed an amended statement of claim. He filed another version of his amended statement of claim on 18 November 2011. The most recent version of the amended statement of claim (“ASOC”) was filed on 9 December 2011. This application concerns that latest version.
[4] The defendant now applies to strike out the claim and the ASOC.
[5] By way of background to the matter, it is convenient simply to repeat the concise exposition by Martin J:
“[4]In about the last week of January 1997 Mr McGrane was a general practitioner who was the subject of two complaints to the Health Rights Commission. Each complaint was from a female patient and each alleged that McGrane had sedated her and then molested her.
[5]The deceased, or someone on her behalf, had also made a complaint to the Health Rights Commission following a house call by Mr McGrane to her home on 9 November 1996. It was alleged that he had drugged her. Mr McGrane became aware of that complaint in late November. Thereafter, in December 1996 and January 1997 he ordered and received the maximum amount of morphine available to him. On about 25 January1997 Mr McGrane visited the deceased at her home and administered a massive, and fatal, dose of morphine. ‘The circumstances in which her deceased body was found were inconsistent with death by suicide or the voluntary use of drugs. She was found in bed, lying on her back, still wearing her glasses, with the bed covers pulled right up to her chin, and “tucked in” in a way she would have been unable to accomplish by herself.’[2]
[6]The deceased was pregnant at the time of her murder.
[7]Mr McGrane unsuccessfully appealed his conviction.[3] He filed an application for special leave to appeal to the High Court of Australia on 13 June 2002 but abandoned that application on 21 November 2002. On 12 February 2007 he applied to the Court of Appeal for an extension of time for leave to appeal and to adduce further evidence. He abandoned those applications on 11 April 2007. On 26 October 2007 he filed further applications for an extension of time to appeal and to adduce further evidence. Those applications were dismissed.[4] McMurdo P said:[5]
‘The evidence Mr McGrane now wants to raise for the first time could have been raised at his trial, or on his appeal. But, in any case, the unsurmountable difficulty for him is that he has already had his appeal to this Court, so that any extension of time or the calling of further evidence would be futile.’
[8]Mr McGrane, having committed a cruel and premeditated murder, now claims to have been defamed by a program broadcast on the 7 television network last year. His claim for damages includes $8,750,000 for ‘loss of income’ and $12,000,000 for ‘loss of right to fair trial’.”
[6] The television program entitled “The Suspects: True Australian Thrillers” was broadcast by the defendant on 8 September 2010 and dealt, in an abbreviated way, with the background to the murder and the investigation.
The amended statement of claim
[7] The ASOC is comprised of a number of discrete sections. It is convenient to deal with the present application by referring to those sections in turn.
[8] Before doing so, however, I should record that the plaintiff had a primary point of opposition to the defendant’s challenge to the ASOC, namely that the “res judicata” principle precluded the defendant from bringing this application. That submission was misconceived. Res judicata arises when an action has been brought and a judgment entered in that action such that no other proceeding can then be maintained on the same cause of action.[6] The judgment of Martin J striking out the statement of claim was not a final judgment determining the cause of action. It did not give rise to res judicata.
Introductory paragraphs
[9] Paragraphs 1.1 and 1.2 of the ASOC plead uncontentious introductory matters, such as the fact that the plaintiff was a medical practitioner until August 1999 and the incorporation of the defendant.
[10] Paragraphs 2.1 and 2.2 plead the broadcasting of the program on 8 September 2010 and “particularise” that a transcript of the program is annexed to the ASOC. Annexure 1 to the ASOC is that transcript.
Defamation
[11] Under the heading “Defamation” (which is labelled as paragraph 2.3), the ASOC pleads:
“2.4During the course of this program the multiple statements and images were broadcast which were defamatory to the Plaintiff.”
[12] Under the heading “Particulars”, the ASOC then enumerates some 51 excerpts of oral statements taken from the transcript and one written message which appeared on screen at the end of the program. Each of these is then purportedly cross-referenced to “defamatory imputation and innuendos” asserted in paragraph 2.5.
[13] Paragraph 2.5 then commences “The defamatory imputations and innuendos cross-reference with paragraphs in which they occur are as follows: ...”, and the ASOC then sets out some 81 “imputations and innuendos”, each of which is cross-referenced back to subparagraphs of paragraph 2.4.
[14] So, for example, paragraph 2.4.1 reads:
“2.4.1
Transcript line number 9 – 10 It did seem unusual that she had the dooner pulled up to her chin and it was tucked in along the sides.
This implies the following defamatory imputations and innuendos: 2.5.80, 2.5.81”
[15] Paragraphs 2.5.80 and 2.5.81 read:
“2.5.80 This statement imputes that the Plaintiff was present to tuck
Chan’s dooner in at the sides of the bed. Paragraph 2.4.1
2.5.81 The Plaintiff could not account for his whereabouts at the time of
Jessica Chan’s death. Paragraph 2.4.1”
[16] To give another example, paragraph 2.4.2 asserts:
“2.4.2
Transcript line number 10 – 11 There was no indication that she was a drug user
This implies the following defamatory imputations and innuendos: 2.5.70, 2.5.71, 2.5.72.”
[17] Paragraphs 2.5.70, 2.5.71 and 2.5.72 read:
“2.5.70 This statement imputes that the Plaintiff had lied to the police and
suggested that he believed Jessica Chan to be an opiate seeker.
Paragraph 2.4.2, 2.4.11, 2.4.12, 2.4.14, 2.4.15, 2.4.21
2.5.71 This statement imputes that the Plaintiff had lied to the police about
believing Jessica Chan to be an opiate seeker, Paragraphs 2.4.2, 2.4.11,
2.4.12, 2.4.14, 2.4.15, 2.4.21
2.5.72 This statement imputes that the Plaintiff had lied to the police about
believing Jessica Chan to be an opiate seeker to disguise his
involvement in her death and that this lie was an indication of guilt.
Paragraph 2.4.2, 2.4.11, 2.4.12, 2.4.14, 2.4.15, 2.4.21”
[18] This format goes on and on, and becomes more and more complicated. For example, the statement in the program “he [referring obviously to the victim’s husband] lost his wife and unborn baby” is said to “imply” no less than 10 “defamatory imputations and innuendos” against the plaintiff.
[19] The way in which the plaintiff has cast the ASOC makes it impossible for the defendant to know what case it has to meet. Many of the excerpts particularised in paragraph 2.4 simply do not refer to the plaintiff at all. There is no attempt in the pleading to articulate the way in which the alleged defamatory meaning of the words was conveyed – indeed, as appears from the examples given above, the ASOC simply elides the concepts of “imputations and innuendos”. Specifically, the ASOC does not identify:
(a)which of the statements are contended to be defamatory according to their natural and ordinary meaning;
(b)to the extent that it is asserted by the plaintiff that particular statements have a particular defamatory meaning by reason of some facts known to the recipient (i.e. a “true innuendo”), the facts and matters relied on to sustain that allegation;
(c)to the extent that it is asserted that particular statements convey a defamatory meaning by inference or implication arising from the natural and ordinary meaning of the words (i.e. a “false innuendo”), the facts and matters relied on in support of that allegation.
[20] In attempting to justify the manner in which he had cast this part of the ASOC, the plaintiff referred to Robinson v Laws.[7] The pleading with which the Court of Appeal was concerned in that case was completely different to the present ASOC. The pleading in that case annexed the full texts of the broadcasts said to contain defamatory matter, extracted the words of which complaint was made, and set out the precise defamatory meanings said to arise from each impugned statement. Williams JA described the form of pleading as follows:
“[79]The imputations alleged by the appellant to constitute the “defamatory matter” are fully particularised in the Statement of Claim. Eight imputations are detailed, each said to be derived from the “natural and ordinary meaning conveyed’ by the broadcasts in question. It is also important to note here that though seven broadcasts were involved there is no repetition in the Statement of Claim of each imputation with respect to each broadcast. The procedure is adopted of cross-referencing the imputations to the broadcasts; that ensures the jury would be clearly aware of what publication was involved with respect to each imputation.”[8]
[21] That is completely different from the scatter gun approach of the plaintiff in the ASOC.
[22] It is a fundamental tenet of our procedural rules that pleadings have the function of stating with sufficient particularity the case that must be met.[9] This requirement ensures that the opponent has the opportunity of meeting the case against them and also to assist in defining the issues for decision.[10]
[23] Those requirements have particular significance in defamation actions, which are conventionally tried by jury. In this case, the plaintiff has sought trial by jury. It was formerly the custom for the pleadings in a defamation case to be read to the jury at the commencement of the trial. Since Practice Direction 1 of 2002, in Queensland an alternative approach has been adopted, namely for counsel for the plaintiff to read out a statement, agreed between the parties, which sets out:
(a)the essential facts necessary to establish the plaintiff’s claim;
(b)the essential facts necessary to establish any defence relied on by the defendant;
(c)details of all admitted facts;
(d)the issues in question for resolution by the jury.
[24] The allegations made in the ASOC are so diffuse as to render it impossible, in my view, to produce a meaningful and useful statement such as is contemplated by Practice Direction 1 of 2002.
[25] Paragraphs 2.4 and 2.5 of the ASOC do not in any way comply with the fundamental purpose of the pleading, and ought be struck out.
[26] In light of my conclusion as to the fundamental defects in these parts of the ASOC, it is not necessary for me to consider a further argument advanced by the defendant on the basis of s 26 of the Defamation Act 2005, i.e. the defence of contextual truth.
Misleading and deceptive conduct
[27] Paragraphs 3.1 – 3.21 of the ASOC purport to plead a claim against the defendant for damages under s 82 of the Trade Practices Act 1974 (Cth) (“TPA”) for breaches of s 52 of the TPA.
[28] The first tranche of allegations assert that the defendant, by representing the program as being investigative reporting of the standard of a reasonably competent journalist, engaged in conduct which was misleading and deceptive; the particulars of this allegation are the allegedly defamatory statements itemised in paragraphs 2.4.1 – 2.4.52 of the ASOC, which are said to be “untrue and/or misleading and would prejudice the viewers, the parole board, and any future jury involved in the Plaintiff’s appeal, and the community at large against the Plaintiff”.
[29] This tranche of allegations concerned conduct which allegedly occurred prior to the repeal of the TPA. Under that legislation, the defendant was a “prescribed information provider”, as that term was defined in s 65A(3) of the TPA. Section 65A(1) relevantly provided that, subject to certain identified exceptions, nothing in s 52 applied to a prescribed publication of matter by a prescribed information provider. None of the specified exceptions apply to this case. The broadcast of the program was clearly a publication made by the defendant in the course of carrying on a business of providing information, and was therefore a “prescribed publication”, as that term was defined in s 65A(2) of the TPA.
[30] Accordingly, these claims by the plaintiff under the TPA are not maintainable, and ought be struck out.
[31] The plaintiff also complains that alleged failures by the defendant to provide him with information in December 2010 and April 2011 “prevented the plaintiff from preparing a satisfactory statement of claim and resulted in the plaintiff’s statement of claim being struck out and costs being awarded against the Plaintiff”. He asserts in the ASOC that this conduct was “silence” which was misleading and deceptive and that he is entitled to recover damages for the defendant’s “silence”.
[32] Regardless of whether the claim was cast under the TPA or under the Australian Consumer Law (operative since 1 January 2011), the result is the same. The conduct complained of by the plaintiff cannot, on any view, be characterised as the sort of “silence” to which the consumer protection legislation applies. Mere silence does not constitute misleading and deceptive conduct. As Hill J explained in Winterton Constructions Pty Ltd v Hambros Australia Ltd:[11]
“However, if the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her would, if it existed, be communicated, then the failure to communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger or detriment existed.”
[33] The allegations made in the ASOC do not, and cannot, give rise to a claim for relief under either the Trade Practices Act 1974 or the Australian Consumer Law.
[34] Accordingly, paragraphs 3.1 – 3.21 of the ASOC should be struck out.
Knowledge
[35] Paragraph 3.22 of the ASOC pleads:
“3.22Transcript statements 2.4.1 – 2.4.52 were known by the First Defendant to be untrue and/or misleading and would prejudice the viewer, the Parole Board, any future jury involved in the plaintiff’s appeal, and the community at large against the Plaintiff.”
[36] This allegation of knowledge seems to be pleaded for the purpose of justifying the subsequent claim made for aggravated damages, or to justify an allegation of malice. The allegation is, however, completely bereft of particulars.
Negligence
[37] In paragraphs 4.1 – 4.6 of the ASOC, the plaintiff alleges, in effect, that the defendant owed the plaintiff a duty to report to the standard of a reasonably competent journalist and that, by broadcasting incorrect information on the program, the defendant breached that duty. This duty was said to arise because:
“4.1The First Defendant was aware, or in the proper performance of its duties ought to have been aware that the Plaintiff was relying on it to perform the accurate reporting of the facts relevant to his case to the standard of a reasonably competent journalist.”
[38] In Perre v Apand Pty Ltd,[12] Gleeson CJ said at [4]:
“In Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (51) all the members of the Court, except Murphy J, accepted that there is no general rule that one person owes to another a duty to take care not to cause reasonably foreseeable financial harm (52). The consequences of such a rule would be intolerable. However, as the decision in that case showed, and as had previously been shown in Hedley Byrne & Co Ltd v Heller & Partners Ltd (53), there are circumstances in which the law recognises a duty of care such as will permit recovery of pure economic loss.”
[39] In the present case, the only claim made by the plaintiff is for pure economic loss as a consequence of the alleged negligent misstatements. Reliance plays an important role in negligent misstatement cases.[13] But that is not the “reliance” which the plaintiff seeks to invoke in the ASOC. The ASOC in no way articulates a case by which the plaintiff claims to have suffered loss by reason of having relied on the alleged duty. Rather, the plaintiff simply posits the duty as having existed because he allegedly relied on the defendant to act in a certain way.
[40] The ASOC discloses no maintainable cause of action for negligent misstatement, and these paragraphs should be struck out.
Aggravated damages, malice and motive
[41] Under the heading “Aggravated damages and malice”, the plaintiff rehashes evidence led at his murder trial, and makes a large number of allegations of factual matters which he contends should have been, but were not, considered at that trial. These contentions extend to allegations of impropriety against the Director of Public Prosecutions and police witnesses and investigators, both in their conduct of the trial and since. The plaintiff also refers to more recent matters, such as his unsuccessful petition for a pardon. In some unexplained way, these matters are said to found an allegation that the defendant acted maliciously in broadcasting the program.
[42] Under the heading “Motive” the plaintiff makes assertions concerning evidence which should have been led at his murder trial, and makes significant allegations of improper conduct on the part of the prosecutor, Legal Aid (which is said to have conspired with the prosecutor) and the Attorney-General, all of whose conduct are said to have contributed to the fact that “the convictions against the plaintiff were obtained as the result of miscarriages of justice”. There is nothing in any of these allegations, however, that link them to the program which was broadcast by the defendant.
[43] In respect of the version of the statement of claim considered by Martin J, his Honour said:[14]
“[The statement of claim] is vague. It lacks clarity in almost all respects. The imputations are not properly pleaded. It consists in many paragraphs of an impermissible mixture of allegation and evidence. It seeks to contradict a verdict of guilty given some 10 years ago. No defendant should be required to deal with it.”
[44] The same applies to these paragraphs in the ASOC. Paragraphs 5.1 – 5.27 and paragraphs 6.1 – 6.3 of the ASOC should be struck out.
Damages
[45] It is necessary to set out the plaintiff’s current plea for damages in full:
“7In view of the above statements the plaintiff seeks the maximum allowable amount for defamation which is $350,000.
7.1The Plaintiff claims general damages for pain and suffering and loss of amenities in the amount on $1,000,000 as regulated by the Civil Liabilities Act 2003 and the Civil Liability Regulations 2003. The Plaintiff suffered a relapse of his depression and post traumatic stress disorder as a result of the public and private response to the program.
7.2Future economic loss 25 years x $350,000 p.a. = $8,750,000
7.3.Future special damages for psychotherapy $250,000
7.4Future special damages for legal fees $1,000,000
7.5Loss and damages resulting from the First Defendant’s contravention of s 52 of the Trades Practices Act:
Malicious misrepresentation 25 x $1,000,000 = $25,000,000
Legal fees for Seven Network ‘Operations’ Ltd unknown at present
7.6Aggravated Damages under s 35 Defamation Act 2005 to include
Attempt to prejudice the Plaintiff’s High Court Appeal and any subsequent retrial for murder.
Attempt to prejudice the Plaintiff’s Supreme Court Appeal and any subsequent retrial for indecent assault and stupefying with intent.
Total = $20,000,000
7.7Past Special Damages: Prolongation of Plaintiff’s imprisonment
400 x $100,000 = $40,000,000
7.8Interest on any award of damages at the rate of 10% per annum pursuant to the Supreme Court Act 1995 (Qld)
7.9The Plaintiff reserves his rights in relation to the second broadcast of the program.
7.10All the above facts are true and I do not believe that the First Defendant has any defence to the claims made against them.”
[46] In his judgment on the last version of the pleading, Martin J said[15] (including his Honour’s footnote):
“The plaintiff has, as is set out above, claimed some $30,000,000 in damages. This is a ludicrous claim and one which merely highlights the grossly unsatisfactory nature of the claim itself.9 The claims for damages for loss of income and loss of a right to a fair trial are, in the circumstances of Mr McGrane serving a life sentence, nonsensical.”
9In the unlikely event that the plaintiff was successful in a properly pleaded action then, on the basis of the material so far put forward, only nominal damages, if any, would be awarded: See Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.”
[47] The plaintiff appears not to have taken his Honour’s hint. The amount claimed now exceeds $95,000,000. The articulation of such a ridiculous claim bespeaks complete disconnection from reality. It would be an insult to our system of justice to permit such nonsensical claims to stand.
Disposition of the matter
[48] It follows from what I have said that the ASOC should be struck out in its entirety.
[49] The question, then, is whether I should also order the claim to be struck out.
[50] I am very conscious of the well established proposition that the “exercise of power to summarily terminate proceedings must always be attended with caution”. [16]
[51] It is also necessary for me to consider the interests of defendants, who are impelled to incur costs as a consequence of the commencement and service of proceedings, and the interests of the Court which, as a public institution, must ensure that its necessarily limited resources are utilised efficiently and in accordance with the underlying philosophy expressed in UCPR r 5.
[52] This plaintiff has had numerous opportunities to present an intelligible case. He has failed to do so. Indeed, his claim has gone from being ludicrous to ridiculous.
[53] In my opinion, the plaintiff has squandered his opportunities to present a proper, comprehensible claim. I see no reason why the defendant should be put to further cost or why the Court should be expected to devote further resources to this matter.
[54] Accordingly, it will be ordered:
(a)The claim filed 7 April 2011 and the amended statement of claim filed 9 December 2011 is struck out;
(b)The plaintiff shall pay the defendant’s costs of and incidental to the proceeding, including the costs of this application, to be assessed.
Footnotes
[1] McGrane v BTQ Channel 7 [2011] QSC 290.
[2] R v McGrane [2002] QCA 173 per de Jersey CJ at [3].
[3] Ibid.
[4] R v McGrane [2008] QCA 42.
[5] Ibid at [4]
[6] Jackson v Goldsmith (1950) 81 CLR 446, per Fullager J at 466.
[7] [2001] QCA 122.
[8] Ibid at [79]
[9] Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517.
[10] Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287.
[11] (1992) 39 FCR 97 at 114.
[12] (1999) 198 CLR 180.
[13] San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act (1996) 162 CLR 340 at 355.
[14] [2011] QSC 290 at [26].
[15] McGrane v BTQ Channel 7 [2011] QSC 290 at [25].
[16] Spencer v The Commonwealth (2010) 241 CLR 118, per French CJ and Gummow J at [24]