Consideration - new plea of justification of imputations (a) to (d)
13 The Court has statutory case management powers and obligations imposed by Pt VB of the Federal Court of Australia Act 1976 (Cth). Those obligations are to achieve the overarching purpose of the civil practice and procedure provisions, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible, as s 37M(1) provides. Section 37N creates personal obligations on both the parties and their lawyers to conduct the proceeding, including negotiations for settlement of the dispute to which the proceeding relates, in a way that is consistent with that overarching purpose.
14 In the previous Federal Court Rules 1979, O 13 r 4(1) provided for the consequential amendment of a defence where an applicant had amended a statement of claim and granted a respondent, who had filed a defence, the right to amend that defence. Order 13 r 4(3) provided that the right to amend under O 13 r 4(1)(a) was in addition to the right to amend under O 13 r 3. The latter granted a party, without leave, the right to amend any pleading unless the time for pleadings had closed or the party had previously amended the pleading. That version of the rules is substantively similar to the provisions in rr 16.51, 16.52 and 16.55 of the Federal Court Rules 2011.
15 In Yarrabee Chicken Company Pty Ltd v Steggles Ltd [2010] FCA 394 at [122], Jagot J held that the former O 13 r 4(1)(a):
… should be construed as permitting a defence to be amended in a manner that is responsive to an amendment in a claim.
16 Her Honour held that the amendment which she was considering in that case was not so responsive. The explanatory statement issued by the authority of the judges of the Court for the Federal Court Rules 2011 stated that:
The new Rules do not substantially alter existing practice and procedure but rather explain it in a way that it can be more easily followed and applied.
17 I am of opinion that Jagot J's observation in Steggles [2010] FCA 394 at [122] is appropriate and correct and equally applies to an amendment under the current Rules made at a later stage of the proceedings, such as the present. It is important to recognise that, in litigation, a litigant with deep pockets may have the capacity to bring and or withstand a considerable variety of challenges in procedural applications that may make an opposing party's task financially burdensome. The conduct of defamation litigation is often complex. That is because it deals with the intersection between the right to reputation claimed by a plaintiff (or applicant) and the exercise of the right of freedom of expression claimed by the defendant (or respondent).
18 Nonetheless, whatever type of litigation is conducted in this Court, the overarching purpose in s 37M(1) applies to it. In my opinion, the ABC's change of position in pleading a wholly new defence of justification to imputations (a) to (d) required an explanation. Senior counsel for the ABC said that it only occurred to him that the ABC should justify imputations (a) to (d), when considering how to respond to the amendments that I allowed Mr Adeang to plead in imputations (e) and (f). I accept his explanation as did senior counsel for Mr Adeang. However, as Gilmour, Perram and Beach JJ said in Tamaya Resources Ltd v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [153]-[156]:
Tamaya acknowledges that an explanation for delay in bringing the amendment application was called for but says that it provided such an explanation which the primary judge wrongly rejected as inadequate. …
The explanation will be given by, or on behalf of, the moving party. Affidavit evidence may or may not be necessary. In Cement Australia, for example, as the explanation was that the error was one of judgment by senior counsel for the ACCC, a statement by him from the bar table, to which no objection was taken, was accepted by the Court as sufficient.
It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.
Evidence as to the explanation for delay will often be given by an applicant's solicitor from their own knowledge but that may, in some cases, not be sufficient. This is such a case. The primary judge was correct to conclude that the explanation offered by Tamaya was deficient because Ms Banton could not explain why she did not know of the Chilean audit issues until she was told by Mr Basford. Her Honour's approach does not involve any error of principle. (emphasis added)
19 In this case, there is no reason to doubt what senior counsel for the ABC told me as to his appreciation of the case. However, the ABC is a litigant very well versed in the conduct of defamation actions and the exercise of the right to express itself in our Parliamentary democracy. There was no explanation from the ABC itself about why it had only now decided to plead justification to imputations (a) to (d), even after Mr Adeang raised his objections to the amendments that the ABC seeks to make by the addition of the plea of justification to imputations (a) to (d).
20 The ABC argued that, in essence, the proof of its defence of justification to imputations (e) to (f) would substantively establish the truth of imputations (a) to (d) inclusive. It contended that a finding that each of those imputations was justified would merely be a matter of inference drawn from the simple fact of the allegation in imputations (b), (c) and (d) that Mr Adeang had caused the interferences alleged in respect of the Commissioner of Police, resident Magistrate and Chief Justice in relation to the investigation of his wife's death.
21 In my opinion, that is not a likely outcome. Proof of both Mr Adeang's purpose and the means by which he acted in order to enable the drawing of an inference of that purpose for each occasion is likely to involve some complex factual inquiry. It is one thing to say that the objective fact that Mr Adeang had an involvement in the removal of the Commissioner of Police from his position or the deportation of the Magistrate or the cancellation of the visa of the Chief Justice is capable of giving rise to an inference of suspicion, the subject of imputations (e) and (f), but it is another to say that he did so for the purpose of ensuring that his wife's death was not properly investigated.
22 In substance, the particulars of justification pleaded in the current defence either repeat the earlier particulars, including some of those that I struck out, or relate to other allegations in the matters complained of. All of those factual matters were available to the ABC when it filed its original defence and could have been relied on, had the ABC wished to justify imputations (a) to (d) in that defence. Not only did the ABC not plead justification to imputations (a) to (d) in its original defence, it did not raise any argument about that possibility in the previous interlocutory hearing that, as I have said, cost the parties over $60,000 between them.
23 The reformulation of Mr Adeang's claim to include the imputations of suspicion in imputations (e) and (f) appeared to me, and still appear to me on the evidence, to be simply inferences that would be drawn from the subject matter on which he would rely to supply a finding that the matter complained of conveyed imputations (a) to (d), as I explained in my earlier reasons. Accordingly, imputations (e) and (f) do not raise any substantively new issues in the proceedings that had not already been raised by Mr Adeang's earlier pleaded imputations and the ABC's imputation 2 that I allowed to stand, namely that Mr Adeang, as a minister of the Nauruan Government, had obstructed the administration of justice on Nauru.
24 It is one thing to say that a person has acted in such a way that he or she deserved to be reasonably suspected of some impugned act or condition. It is another, and quite a different, thing to say that the person is actually guilty of some impugned act or condition: see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J with whom Gibbs CJ, Wilson and Brennan JJ agreed on this issue, and the cases to which I referred in Adeang [2016] FCA 1200 at [15]-[21].
25 Of course, it was open to the ABC to decide to justify imputations (e) and (f). There can be no objection to it doing so, having regard to the fact that they were new allegations made against it. However, given that the ABC was already seeking to plead contextual justification based on Mr Adeang's conduct in imputation 2, I am unable to understand, absent an explanation by the ABC itself, as opposed to the explanation, that I accept, of its senior counsel, any reason why, if it had not made an informed decision, it had omitted to plead justification to imputations (a) to (d) in its previous defence based on the material that was available to it. Having regard to its activities as a publisher and its experience as a litigant in defamation proceedings, the ABC itself was capable of deciding whether it wished to plead in any litigation that what it published conveyed an imputation or contextual imputation that was a matter of substantial truth. The ABC has not explained its reasons for how it made its original choice of defences and its subsequent decision to act on its senior counsel's new thoughts.
26 In those circumstances, given the factual material to which the ABC had access at the time it pleaded its original defence and its failure to explain why it did not previously plead justification, I am not prepared to allow the ABC to raise a range of substantively new allegations by way of justification to imputations (a) to (d). Accordingly, the plea of justification to imputations (a) to (d) should be struck out.