(ii) those contextual imputations were matters of substantial truth;
(iii) both the plaintiff's imputations and the contextual imputations related to the nominated matters of public interest or were published under qualified privilege; and
(iv) by reason of the contextual imputations being matters of substantial truth, [the publication of] the plaintiff's imputations did not further injure the plaintiff's reputation (Defamation Act, s 16).
The defendant also pleaded in mitigation of damages the following matters: the circumstances in which the plaintiff proved the letter was published, the plaintiff's bad reputation, the truth of the plaintiff's imputations and of the defendant's contextual imputations, and the plaintiff's delay in prosecuting the proceedings.
18 Included in the Defence are twenty-two pages of particulars of truth. Subsequently, 111 pages of further particulars of truth (in single-spaced typing) were supplied.
19 In answer to the defence of qualified privilege, the plaintiff's Reply pleads that the defendant was actuated by express malice in the publication of the letter. The particulars of that allegation, as required by Part 67 r 19, identify a number of actions taken by the defendant during the period from 1985 to 1988 (in his role as a member of the Licensing Investigative Unit), and one action taken by the defendant in 1992 (after he had retired from the Police Service), which are alleged to have been unfairly detrimental to the plaintiff and his interests.
20 The plaintiff also gave particulars before the trial of a specific part of his claim for damages. This specific claim for damages gave rise to the first ruling made by the trial judge against the plaintiff in the trial, and it is convenient at this point to make a brief reference to an event which is important to the way the plaintiff sought to outline his case at the trial. This event occurred during 1992-1993. The plaintiff's company had made an application for a dealer's licence in the State of Nevada in the USA. The plaintiff says that there is in that State a two-stage procedure. The first stage consists of an investigation. If the applicant passes that investigation, it is said, the next stage granting approval and a licence is formal only. The plaintiff's case is that his company had passed through the investigation successfully, and that the formal grant of the licence was listed for hearing in July 1993. It was just before that hearing that the defendant wrote his letter to the Police Minister.
21 As a result of that letter having been written, the Minister directed Detective Chief Inspector Mellis and another officer to investigate the allegations made by the defendant. In the course of that investigation, a Sgt Osborne wrote to the Nevada Gaming Control Board informing that Board that the investigation being conducted was into the plaintiff's suitability to be associated with the exercise of his company's poker machine and amusement device dealer's licences. As a consequence of Sgt Osborne's letter, the plaintiff says, the Nevada Gaming Control Board re-opened its inquiry into the application under consideration. The plaintiff says that he was forced to withdraw his company's application under penalty that his company would be unable to re-apply for a period of twelve months. Because of the ongoing inquiries in New South Wales in consequence of the defendant's letter, the plaintiff says, it was impracticable for his company to re-apply in Nevada for some years, and the letter by Sgt Osborne thus resulted in substantial loss and damage to the plaintiff. Notice of such a case on damages was given to the defendant's solicitors by letter dated 5 July 2002. That notification does not appear to have excited any inquiry by the defendant as to how the plaintiff sought to make him liable for such a consequence.
22 Sgt Osborne's notification to the Nevada Gaming Control Board has not been put forward by the plaintiff as a separate publication of the gist of what is in the defendant's letter to the Police Minister. It did not therefore have to be pleaded in the Statement of Claim. It was put forward solely on the issue of damages, as indicated to the defendant in the July 2002 letter. This was again confirmed in a letter sent to the defendant's solicitor on 31 March 2005, a few days before the hearing commenced. The March 2005 letter does not formulate any new claim, it merely gives notice as to how the plaintiff proposes to prove his claim notified in July 2002 that the defendant was liable for damages in relation to his Nevada dealings. There is no suggestion in the correspondence before this Court that the defendant had sought these particulars at any time since notice of the claim had been given him in July 2002.
23 The additional particulars supplied in the letter of 31 March 2005 allege that the defendant knew, when he wrote to the Police Minister on 4 June 1993, that the application by the plaintiff's company to what is now described as the Nevada Gaming Commission was listed for hearing the following month, and that he deliberately intended the letter to coincide with that hearing. It is alleged that the defendant believed that the Police Minister would set in progress an inquiry into that letter, and that he knew and believed that the natural and probable consequence of such an inquiry would be that the Nevada Gaming Commission would be advised of the fact of that inquiry, because officers from that Commission had previously been making inquiries in Australia investigating the plaintiff and his company. The defendant is alleged to have intended his letter to the Police Minister to prejudice the application by the plaintiff and his company in Nevada fatally, or to delay or to defeat it. Many of these allegations appear to be based, at least in part, on a record of interview with the defendant by Sgt Osborne, in which the defendant suggested an investigation into the plaintiff's relationship with an officer of the "US Nevada Gaming Board" and into any irregularities in the application the plaintiff's company had made to that Board - matters he had not identified in his letter to the Police Minister.
The commencement of the trial
24 The following brief description of the relevant events which occurred during the trial is given in order to provide an immediate context to the various issues raised during those proceedings which are the subject of this appeal. These issues will be dealt with separately after referring to the application for leave to appeal.
25 On the first day of the trial, senior counsel for the plaintiff sought successfully to have some important issues determined by the judge before he opened to the jury. On that day, the judge indicated that he thought it would be unlikely that he would permit the plaintiff to expand his case on damages relating to his dealings in Nevada so late in the day. The issue was, however, left on the basis that senior counsel for the plaintiff would not open the material in dispute to the jury, but would raise the issue again for a ruling before embarking on proof of the claim.
26 On the second day, the judge held that a number of decisions of the Licensing Court granting licences to the plaintiff's company - together with another document which assumed some importance in the plaintiff's case, the report of Detective Chief Inspector Mellis (referred to as the "Mellis Report") - were not within the plaintiff's case as then formulated. In order to make these documents admissible, an application was made to amend the particulars of malice and to supply particulars of the plaintiff's claim for aggravated damages. This application was refused. (The Mellis Report is dated 3 June 1994, and is headed "Complaint by Mr LJ Burden, former Police Inspector to the Minister of Police and Emergency Services concerning Leonard Hastings Ainsworth". Paragraphs 1-2 of that report state that Detective Chief Inspector Mellis and another officer had been directed to investigate the allegations made by the defendant in his letter dated 4 June 1993 to the Police Minister, the subject of this action. The report does in some respects go beyond those allegations - apparently as a result of Sgt Osborne's interview with the defendant.)
27 Further submissions were made in relation to the Mellis Report on the third day of the trial. The judge said that he thought that certain portions of that report were admissible in accordance with the Evidence Act 1995, but he rejected the tender of the whole document. There was no final determination of what parts of the report would be admissible.
28 On the fifth day of the trial, the judge rejected certain documents which identified in a limited way the decisions given by the Licensing Court granting licences to the plaintiff's company dealt with earlier. Those documents identified the result of those decisions but not the reasons which had been given for those decisions. They had been tendered in response to some of the reasons given by the judge for rejecting the decisions themselves, and in an endeavour to overcome those reasons.
29 On the same day, during the course of the opening address by the plaintiff's senior counsel to the jury, the judge discharged the jury on the defendant's application. The basis of that decision was that counsel had referred to the Mellis Report in the course of his address, notwithstanding that no final decision had been given on its admissibility, and that the references were to parts of the report which the judge then stated were inadmissible. One of the grounds the judge gave for rejecting what were otherwise apparently accepted as relevant parts of the report was that the views which Detective Chief Inspector Mellis had expressed on issues which arose in these proceedings were strongly in favour of the plaintiff, and that the jury's knowledge of those findings would be unfairly prejudicial to the defendant.
30 On the sixth day of the trial, the defendant withdrew the defences of statutory qualified privilege, truth and contextual truth. The remaining defences are common law qualified privilege, unlikelihood of harm (Defamation Act, s 13) and absolute privilege. Leading counsel for the defendant informed this Court that he had also withdrawn the defendant's reliance on the truth of the plaintiff's imputations and of his own contextual imputations in mitigation of damages and the allegation in his particulars of mitigation that the plaintiff had a bad reputation. The plaintiff's delay in prosecuting the proceedings remains as the only particular in mitigation of damages.
31 On the same day, the plaintiff renewed his application to amend his particulars of malice and to supply particulars of his claim for aggravated damages, in order to make the decisions of the Licensing Court and the Mellis Report admissible. The judge gave a decision the next day, the seventh day of the trial, adhering to his previous rulings rejecting the admissibility of the Licensing Court decisions and the application to amend the particulars of malice. He again indicated that parts of the Mellis Report may be admissible in accordance with the Evidence Act. He said that, in the light of the withdrawal of the defence of truth, the prejudice which had previously led him to reject those parts on which counsel for the plaintiff had opened to the jury was not as strong as it had previously been, and that he would revisit its admissibility when the plaintiff's case was further advanced.
32 Later on the seventh day of the trial, the judge sought to encapsulate his previous rulings in the one judgment with some additional reasons for those decisions. He recorded the submission by senior counsel for the plaintiff that the rulings he had made greatly impeded the plaintiff's case and what counsel had wished to put to the new jury in his opening address, a submission which the judge accepted. Counsel informed the judge that he wished to test those rulings in this Court, as they had effectively "gutted" the plaintiff's case. The defendant did not oppose an adjournment to enable an application for leave to appeal to be made, although his counsel stated that he would oppose this Court embarking on a hearing. The judge adjourned the case whilst this Court was approached.
The application for leave to appeal
33 The application for leave to appeal and the proposed grounds of appeal were argued before this Court after the proceedings in the Common Law Division had been stayed (except to discharge the new jury called). The proposed grounds of appeal raised a substantial number of issues to be determined. At the conclusion of the argument, leave to appeal was granted and the decision on the appeal was reserved. The parties were directed to inform the judge that there was no prospect that the trial could proceed before the new jury which had been called. The plaintiff was directed to file his Notice of Appeal. The new jury was subsequently discharged.
34 It is necessary to make it plain that leave to appeal from decisions made during the course of a trial - particularly a jury trial - will not be granted lightly: Nationwide News Pty Ltd v El-Azzi [2004] NSWCA 382 at [24] - [25]. In that case, the issue raised in the application for leave to appeal was one of fundamental importance in the law of defamation concerning the nature of evidence which is relevant to a plaintiff's reputation, involving the possible reversal of a long-standing decision of this Court, and one which would have required a substantial amount of research and argument. Because of the lateness of the issue being raised, it was not appropriate to delay the trial to enable the applicant to seek to have the long-standing decision of this Court reversed. The present appeal does not involve issues of that nature. And, whereas in El-Azzi a subsequent reversal of a decision at the trial to follow the long-standing decision of this Court meant only a retrial as to damages, a subsequent reversal of the decisions of the trial judge in the present case would require the whole case to be reheard. Moreover, a number of the rulings made by the trial judge appeared on their face to be erroneous and indicated the very real possibility of a misunderstanding of the issues which had arisen. If left standing, those decisions were likely to have substantial and deleterious consequences if the trial were to proceed without those errors being corrected. It was for these reasons, which are unusual and hopefully extraordinary, that leave to appeal was granted.
35 I turn now to the issues which arose at the trial and which have led to the present appeal.
The plaintiff's claim for damages in relation to his Nevada dealings
36 It is unclear from the material placed before this Court just how the issue concerning the plaintiff's claim for damages in relation to his Nevada dealings arose on the first day of the trial before the plaintiff's claim was opened to the jury, but it would seem that there was an objection by the defendant to the letter of the 31 March 2005 to which reference has been made in pars [22] - [23] supra.
37 In the judgment the judge gave that day, he took the view that the plaintiff was at that late stage bound by the case of which he had already given notice in 2002. In that judgment, the judge referred to another letter from the plaintiff's solicitors, one dated 22 May 2002, as "particularising the way in which the plaintiff formulates his case", and he suggested that the letter of 31 March 2005 was inconsistent with that letter.
38 So far as it could be relevant at all, the letter of 22 May 2002 merely gives particulars of publication - to Mr Griffiths (the Minister at that time), and to Detective Chief Inspector Mellis and their respective staffs to whom access was given, the staff of the latter being identified as Detective Chief Inspector Allen, Detective Inspector Richardson, Detective Sgt Clark, Detective Senior Constable Paris, Sgt Osborne, Sgt Fenwick and Sgt Hanrahan. Although none of this is made clear in the plaintiff's Statement of Claim, the defendant's leading counsel conceded before this Court that the publication to the various police officers fell within the original publication of the defendant's letter to the Police Minister (Appeal Transcript, T 47). It would be as well that the extent of this publication is now made clear in the Statement of Claim. However, as it has already been pointed out (par [22] supra), the effect of Sgt Osborne's letter on the plaintiff's dealings in Nevada went only to the issue of damages resulting from the publication of the letter to the Police Minister; it was not based on any separate publication of the defendant's letter to the Nevada authorities. There was therefore no inconsistency between the later letter of 31 March 2005 and the particulars of publication given on 22 May 2002.
39 The judge went on to say in his judgment on the first day of the trial:
However, the letter of 31 March 2005 in some respects seeks to expand the plaintiff's case beyond that contained in the 2002 letters and, in my view, it would be a rare occurrence where, for a case commenced in 1996, the plaintiff was allowed to expand its [ sic ] case in a further letter written so recently.
He then expressed the tentative view in relation to that letter that "the plaintiff should not be allowed to expand its [ sic ] case beyond the 2002 letters".
40 The judge appears to have misunderstood the letter of 31 March 2005 as expanding the plaintiff's claim for damages notified in July 2002. That letter did no more than explain to the defendant, despite the fact that he had not sought any further particulars of the claim, how the plaintiff proposed to prove his claim in relation to the Nevada dealings notified in July 2002. The additional particulars supplied could only have assisted the defendant, by describing the nature of the evidence to be called. He was not being asked to meet any new case beyond that of which he had been given notice in July 2002. The ruling was, of course, only tentatively expressed at that stage, but the judge was in error when he prevented senior counsel for the plaintiff from opening this to the jury as part of the plaintiff's case.
Application to amend particulars of malice and to supply particulars of aggravated damages
41 After some discussion on the first day of the trial concerning the way in the plaintiff put his case on the issue of malice (in reply to the defence of qualified privilege pleaded), the plaintiff's solicitors identified his case on malice - in a letter dated 4 April 2005 - as being based on the following particulars:
1. The particulars in the Amended Reply, specifically paragraphs 2(l), (m) and (n).
[Those particulars were:
(l) The defendant was party to the decision to raise fifty-five (55) grounds of objection to an application by the Plaintiff for an Amusement Device Dealer's Licence to be heard before Mr Hammond SM, in May 1985.
(m) The Defendant was party to the decision to withdraw many of the fifty-five (55) grounds of objection to the Plaintiff's licensing application before Mr Hammond SM in the Licensing Court in May 1985.
(n) The defendant was involved in decisions affecting the conduct of proceedings before the Court's [sic] dealing with the Plaintiff's licensing application, necessitating forty-two (42) days of actual hearings spread over a period of three (3) years.]
2. Letters of 3 March 1999 and 29 January 2001 providing further and better particulars.
[Both letters gave further details of the particulars of malice provided in the Reply, including the three paragraphs already quoted. Paragraph 2(b) of the same particulars asserted that, after the plaintiff's company had been granted a licence (which the defendant had unsuccessfully opposed), the defendant had in November 1985 sought to influence the Corporate Affairs Commission to investigate the company's financial affairs. The 2001 letter says:
By November 1985 the defendant had become aware through evidence given before and the findings made by Mr Hammond SM that:
(i) there was no possibility that any of the Ainsworth companies were insolvent due to a tax assessment of $30 million, and
(ii) there was no illegality or impropriety in relation to the two different sets of audited statements as at 30 June 1984.
It must be inferred that the defendant had no honest belief that the Corporate Affairs Commission would find that any of the Ainsworth companies were insolvent or that there was any impropriety in relation to the sets of audited statements and therefore that the approach to the Corporate Affairs Commission was motivated by malice.
The 2001 letter also asserts that the defendant had no honest belief in a number of the other allegations he had made to various statutory authorities to the prejudice of the plaintiff and his company.]
3. Persistence in the particulars of truth as set forth in the letter dated 5 February 2001 from the defendant [the 111 page letter already referred to] notwithstanding the judgments of the Licensing Courts of New South Wales being:
· 30 August 1985 - Hammond LM
· 27 May 1988 - Full Bench of the Licensing Court
· 29 November 1988 - Full Bench of the Licensing Court granting Poker Machine Manufacturer Licence
· 17 August 1988 - Collins LM
· 25 August 2001 - Full Bench of the Licensing Court
and the terms of the Mellis Report dated 3 June 1995.
[Brief reference has already been made to the Mellis Report, and I will return to it shortly.]
42 It is the plaintiff's case that the defendant, being the senior officer of the Police Licensing Investigative Unit, was responsible for the investigation of the applications made by the plaintiff's company for gaming licences under the Liquor Act and the Registered Clubs Act, and for preparing and signing the objections lodged by the police to the grant of those licences. In the first of those applications, one for an amusement device dealer's licence heard by Mr Hammond in 1985, the defendant had lodged extensive objections. After a long hearing, the magistrate found that the objections were not sustained, that the plaintiff was a fit and proper person, and he granted the licence. The police appealed to the Full Bench of the Licensing Court. The appeal was by way of a rehearing de novo: Superintendent of Licences v Ainsworth Nominees Pty Ltd (1987) 9 NSWLR 691 at 692, 694, 705. The defendant lodged the same objections, and there was another lengthy hearing. The plaintiff says that the objections were again ultimately not sustained, the Full Bench found that he was a fit and proper person, and the licence was again granted.
43 The Mellis Report identifies a number of other steps taken in the litigation before the plaintiff's application heard by Mr Hammond was ultimately successful in 1988. On 21 March 1986, the Full Bench initially allowed the appeal from Mr Hammond's decision. The plaintiff appealed to the Supreme Court, which allowed the appeal in a form which restored the decision of Mr Hammond granting the licence: Ibid at 705. That decision was itself reversed by the Court of Appeal, but the order made was to remit the proceedings to the Full Bench of the Licensing Court for a re-hearing by that Court because of the different understandings between the parties as to the basis on which the previous appeal was to be conducted: Ibid at 694. In a detailed decision on 27 May 1988, the Full Bench found that the plaintiff was a fit and proper person to hold a licence, dismissed the appeal brought by the police against Mr Hammond's decision on 30 August 1985, and granted the licence. The Chairman commented:
It is apparent from the documentation in the present case notwithstanding a very thorough investigation, that nothing untoward has been unearthed that reflects in any way on the company or any of its office holders.
44 The second application was for a poker machine manufacturer's licence in 1988. The Full Bench was advised by the police that, after an investigation of the plaintiff, no objection was to be raised. The licence was granted. The plaintiff has not given this Court the details of the hearing before Mr Collins LM in August 1988 (referred to in the last letter of particulars), other than that the plaintiff was found to be a fit and proper person to hold a licence and the licence was granted, despite the objections lodged by the defendant. The material before this Court sheds no light on what occurred between the grant of the licence by Mr Collins in August 1988 and the decision of the Full Bench of the Licensing Court in August 2001, but by that time the defendant had retired from the Police Service. The defendant nevertheless asserted in the particulars of truth he supplied of his defence in these proceedings in February 2001 that such particulars of truth covered "more or less the same ground" as the grounds of objection filed by the police in the Licensing Court to applications by the plaintiff over the previous twenty years (page 3, par 5).
45 It is the plaintiff's case that the Mellis Report also rejected all of the matters raised by the defendant in the proceedings in the Licensing Court and all of the matters raised by him in his letter to the Police Minister. The letter of 4 April 2005 identifying the plaintiff's case on the issue of malice (quoted in par [41] supra) identifies the relevance of the Mellis Report and the decisions in the Licensing Court as demonstrating that the defendant had persisted in his defence of truth notwithstanding that all of the matters on which he relied had been investigated and dismissed in those proceedings and in that report.
46 Malice in the usual sense of the word means a desire to injure the person defamed or the existence of personal spite towards that person. It is unnecessary to discuss here any of the extended meanings of malice in the law of defamation. If a malicious state of mind on the part of the defendant in either of these two senses is established as the dominant motive for the publication of defamatory matter, any qualified privilege claimed for that publication is lost, notwithstanding that the defendant had either a belief in the truth of what has been published or a duty to publish it: Horrocks v Lowe [1975] AC 135 at 149. In any event, in relation to the defendant's belief in the truth of what has been published, there is sometimes a fine line to be drawn between, on the one hand, such a belief resulting from ignorance, excessive enthusiasm, intellectual eccentricity or an inability to reason and, on the other hand, a blind or reckless adherence to such a belief, through malice or perversity or in the face of every evidence to the contrary of what has been published. The former is still regarded as an honest belief, the latter is malice which destroys any qualified privilege claimed. It is not always easy to draw that line. Nor are some of the cases easy to reconcile; compare, for example, the statement of Lord Esher MR in Merivale v Carson (1887) 20 QBD 275 at 281-282 with the statements of the same judge earlier in Clark v Molyneux (1877) 3 QBD 237 at 248 (as Brett LJ) and later in Royal Aquarium Society v Parkinson [1892] 1 QB 431 at 444.
47 The persistence by the defendant in asserting the truth of the allegations in his letter to the Police Minister, notwithstanding the constant rejection of his allegations, after investigation, by the Licensing Court and by the inquiry instigated by his letter, is relied on by the plaintiff not only as evidence of malice in reply to the defence of qualified privilege but also as a matter in aggravation of damages. What is evidence of malice will usually also aggravate damages, subject only to the restriction imposed by s 46(3)(b) of the Defamation Act. Much (but not all) of that which aggravates damages will also be evidence of malice. The state of mind or conduct on the part of the defendant on which the plaintiff in the present case relies as part of his case on malice - that he sent the letter to the Police Minister and persisted for a long time in asserting the truth in the circumstances already outlined - are such matters which are relevant to both issues (malice and aggravated damages) as demonstrating either that the defendant did not have any honest belief in the truth of what he wrote or that he pursued the plaintiff repeating those allegations with some other animus against him: See, generally, Praed v Graham (1889) 24 QBD 53 at 55; Derry v Peek (1889) 14 App Cas 337 at 376; Triggell v Pheeney (1951) 82 CLR 497 at 513-514; Akerhielm v De Mare [1959] AC 789 at 805; Rookes v Barnard [1964] AC 1129 at 1221; Broome v Cassel & Co Ltd [1972] AC 1027 at 1073; Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 386.
48 In order to establish for these purposes the defendant's persistence in asserting the truth of his allegations in the face of constant rejection of those allegations, after investigation, by the Licensing Court and in the Mellis Report, it is necessary for the plaintiff to prove that the defendant was aware of the contents of the judgments which had been given, for it is the contents of those judgments which are said to demonstrate to any honest-minded person that the defendant's allegations were untrue. The inference that the defendant was aware of the contents of those judgments is clearly open (and almost irresistibly so) on the material in the defendant's particulars of truth. The inference that the defendant would have been aware of the contents of the Mellis Report in response to his letter to the Police Minister which is the subject of this action is also clearly open.
49 The plaintiff was accordingly entitled to place the contents of each of the judgments from the Licensing Court and of the Mellis Report before the jury in order to prove the relevant state of mind and conduct of the defendant. There were a number of issues raised during the trial as to the admissibility of these documents, which are more conveniently dealt with later in the judgment (see pars [87] et seq, infra). It is sufficient at this stage to state that the contents of those documents were admissible in evidence provided that the allegation of the defendant's persistence in the truth of his allegations in the face of constant rejection of those allegations fell within the plaintiff's case as then formulated.
50 As already stated, the judge held that the documents enumerated in the third paragraph of the letter quoted in par [41] supra were not within the plaintiff's case as then formulated, and an application was made to amend the particulars of malice and to supply particulars of the plaintiff's claim for aggravated damages. This application was refused the same day (par [26] supra), renewed on the sixth day of the trial and refused again the next day (par [31] supra).
51 In the usual course, an application to amend a pleading will be granted unless the pleading (or that part of the pleading) as sought to be amended would have been struck out if it had been contained in the original pleading: Horton v Jones (No 2) (1939) 39 SR 305 at 309-310; Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 at 425; Commissioner for Railways v Bielewicz (1962) 63 SR 466 at 468; Heath v Goodwin (1986) 8 NSWLR 478 at 482. It would be struck out (and thus the amendment will not be permitted) only where the claim is manifestly groundless: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129. It was not suggested that the present claim sought to be added was manifestly groundless, nor could it be suggested.
52 A judge does, however, have a discretion to refuse an amendment. An appeal based upon the judge's refusal to grant an amendment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion: Conroy v Conroy (1917) 17 SR 680 at 684; Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (1964) 82 WN (Pt 1) 125 at 127. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion: House v The King (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 573 at 532-534; Rodgers v Rodgers (1964) 114 CLR 608 at 619-620; Dinsdale v The Queen (2000) 202 CLR 321 at [3]. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made: Maxwell v Keun [1928] 1 KB 645 at 653; Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (at 127); Bloch v Bloch (1981) 37 ALR 55 at 58-59; Walker v Walker [1967] 1 WLR 327 at 330.
53 The plaintiff complains of a number of rulings by the judge in relation to various issues which arise out of his refusal of the application to amend, and which are said to have been erroneous.
(i) The emphasis on the lateness of the application as an answer to that application
54 The judge had already expressed the firm view in his judgment on the first day of the trial that late amendments would be a "rare occurrence" in this trial (see par [39] supra). In his judgment on the second day of the trial, when rejecting the application to amend the particulars of malice and to supply particulars of aggravated damages, the judge said:
This case was commenced in 1996 and has been the subject of numerous separate hearings of one sort or another, either at first instance in the Court of Appeal or I think on one occasion in the High Court since. It has been set down for four weeks.
[…]
Quite separately I think the principles and practices governing the orderly conduct of litigation also argue strongly against an amendment of the nature envisaged being allowed at this stage, although I do not find it necessary to rely on that fact. There is no reason advanced on behalf of the plaintiff why, the proceedings having commenced in 1996, he should only be seeking to amend its [ sic ] reply after the proceedings have commenced. Accordingly the application to amend the reply is refused.
55 When the plaintiff renewed his application to amend his particulars of malice and to supply particulars of aggravation of damages following the withdrawal of the defendant's defences of truth and contextual truth (among others), the judge said, in his first judgment on the seventh day of the trial:
So far as this application is concerned, I adhere to the stance I adopted on 5 April last [the second day of the trial - quoted in par [54] supra ] and the application is refused for the reasons I then gave.
[…]
In short I take the view that it would not be appropriate at this late stage of a case commenced in 1996 where the amended reply was filed in June 1999 and where there have been numerous interlocutory applications and where some weeks have been set aside for the hearing to permit amendment of the reply in the manner suggested.
56 These statements by the judge demonstrate that, in his judgment on the second day of the trial, he had considered "the principles and practices governing the orderly conduct of litigation" (or the principles of case management, as they are usually described), although finding it unnecessary to rely on them on that occasion. The judge actually relied on those principles in the first judgment he gave on the seventh day of the trial, when he held that it was not appropriate "at this late stage" of the case to permit an amendment where some weeks had been set aside for the hearing. The reference to such principles is to the many statements made by the courts in this State and elsewhere concerning the relevance of case management principles to the exercise of discretion in procedural decisions, following the decision of the House of Lords in Ketteman v Hansel Properties Ltd [1987] AC 189, leading up to the decision of this Court in GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 716 and to the decision of the High Court in Sali v SPC Ltd (1993) 116 ALR 625. In the last of those cases, the High Court said (at 636):
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.
57 However, the High Court had since that case emphasised that, in Sali, it was dealing with an application for an adjournment, not to amend the pleadings to raise a new issue: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154. So far as an application for such an amendment is concerned, the High Court drew attention in that case (at 152-153) to the views of Bowen LJ in Cropper v Smith (1884) 26 Ch 700 at 710:
Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.
Those views had previously been accepted and applied by the High Court in Clough and Rogers v Frog (1974) 4 ALR 615, when it added (at 618):
As the defence, if established, would be a complete answer in either action, the amendments sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent, there being nothing to suggest fraud or improper concealment of the defence on the part of the appellants. With the exception of the suggestion of prejudice arising in respect of the loss of the possible claim against the nominal defendant, the matters relied upon by the respondent in opposition to the amendment sought go at the most to delay and irregularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression is used.
The High Court in the JL Holdings case went on to say (at 154, 155):
Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
[…]
Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.
The trial judge in the present case placed no reliance on the existence of any "extreme circumstances" justifying the plaintiff being shut out from litigating the additional matters sought to be raised - which related to issues already included in the pleadings and which were clearly arguable - on the basis of case management principles.
58 That is not to say that the lateness of the application was irrelevant to the factors on which the judge had to exercise his discretion. The delay in making the application created a heavy onus on the plaintiff to demonstrate that the defendant was not prejudiced by the additional issues being raised at that stage in a way which, as Lord Esher MR once put it, could not be compensated by an order for costs: Clarapede v Commercial Union Association (1883) 21 WR 262 at 263; see also Horton v Jones (No 2) (at 309-310); Commissioner for Railways v Bielewicz (at 468). But neither the plaintiff's delay nor the efficiency of court procedures (or the principles of case management) was, in itself or the two in combination, an answer to the application made.
59 The judge erroneously permitted the efficiency of the court procedures to prevail over the injustice caused by shutting the plaintiff out from litigating the issues in question.
(ii) The assessment of the prejudice to the defendant
60 In his judgment on the second day of the trial, the judge said:
To grant the amendment which the plaintiff seeks will certainly involve those on the defendant's side of the record in having to direct careful attention to the later decisions of the Licensing Court.
I read … the vast bulk of those decisions last night and it is apparent from that consideration that they could not be adequately dealt with by those on the defendant's side of the record without a substantial amount of work, both in appreciating all that is said and in taking instructions from the plaintiff [scil defendant] in respect of many of those matters.
I have been informed, without dissent, that last Friday an application was made to Justice Greg James for a stay of these proceedings on the basis of ill-health on the part of the defendant, an application which was refused, but in circumstances where Justice James apparently accepted the fact of the defendant's ill-health. That ill-health it is submitted is likely to be exacerbated by strain and would impose yet a further burden were the defendant required at this stage to have to deal with the additional matters raised by the decisions subsequent to those of Mr Hammond.
[The proceedings before Mr Hammond were the only ones referred to in the earlier particulars.]
[…]
In my view the burden which the amendment would impose on the defendant's side of the record, whether or not the defendant's ill-health is taken into account, is such that the amendment should not be allowed.
61 In his first judgment on the seventh day of the trial, the judge added:
I would however supplement the reasons [given on the second day of the trial - quoted in par [60] supra ] by reference to the following: By letter of 5 February 2001, a letter extending to some 111 pages, the defendant provided particulars of its defence, a defence which then included an allegation of truth. Within the particulars supplied is reference to many matters which overlap, indeed substantially overlap with matters which would be likely to arise were the plaintiff permitted to rely upon the judgments of, or in one case the transcript in, the Licensing Court referred to in the letter of 4 April 2005. This overlap provides grounds for thinking that the expansion of the reply would thus be something which would involve relatively little, if any, additional work on the part of the defendant or his legal representatives.
However, this is not a conclusion which I draw. Indeed I remain of the view that the probability is to the contrary.
In part I am influenced at arriving at this conclusion by the terms of Mr Evatt's remarks to the jury array when addressing them [on behalf of the defendant] pursuant to section 38(8) of the Jury Act [1977] [informing them of the identity of the principal witnesses to be called by the defendant] and to which remarks Mr Stitt has made reference on a number of occasions [on behalf of the plaintiff]. The terms of those remarks were, to say the least, tentative if not inconsistent on the topic of witnesses to be called and by comparison with the hundred odd pages of particulars and the pleadings on the issue of truth certainly suggested to my mind that preparation on those issues was by no means as complete as may have been expected from the documents.
The withdrawal of the defence of truth argued strongly in the same direction.
62 Before dealing with the various matters of injustice or prejudice claimed, reference should be made to the efficacy of an order for costs in the present case, as did the High Court in the JL Holdings case (at 154-155). The defendant has an indemnity from the State Government, unqualified as to amount in respect of damages and costs, so far as this litigation is concerned. This was proved by the defendant's solicitor in proceedings before G James J (to which reference is made in par [79], infra): Ainsworth v Burden [2005] NSWSC 338 at [5] - [6]. There is no dispute that an order for costs can be met by the plaintiff.
63 The application to amend by adding to the particulars of malice did not raise any issues which had not already been raised some time earlier by the pleadings, particulars and correspondence in one form or another as the case stood on the first day of the trial. The only parts of the case which the plaintiff put forward on the issue of malice in the letter of 4 April (see par [41] supra) which had not previously been expressly identified as part of that case were (i) the Licensing Court judgments of Mr Collins LM in August 1988 and of the Full Bench in August 2001, and (ii) the contents of the Mellis Report.
64 The judgment of Mr Hammond SM on 30 August 1985 is expressly identified in the particulars of malice filed with the Reply. The judgment of the Full Bench in May 1988 is encompassed by the reference in par (n) of the particulars filed with the Reply to the proceedings being "spread over three years" (quoted in par [41] supra). Further particulars of the particulars filed with the Reply, supplied by letter dated 29 January 2001, had identified the inference for which the plaintiff contended as arising from the matters specified in the Reply as being that the defendant had no honest belief in the allegations which had been made before Mr Hammond. That letter had also identified the inferences for which the plaintiff contended as arising from the fact that the allegations made before the Full Bench were withdrawn in November 1988 as being that there had been no basis for making them, and that the intention of the defendant had not been to raise bona fide objections in the Licensing Court but to injure the interests of the plaintiff.
65 The issues raised before Mr Collins LM in August 1988 and the Full Bench of the Licensing Court in August 2001 fall within the period of "over twenty years" of objections filed by the police which the defendant said covered "more or less" the same ground as the particulars of truth supplied in January 2001 (see par [44] supra). No suggestion has been made that those issues differed in any significant way from those raised in either the previous or the subsequent proceedings in the Licensing Court, and they were thus encompassed in the warnings given that the defendant's belief in the truth of the objections taken in those previous and subsequent proceedings was challenged.
66 As already stated, the plaintiff's argument is that these judgments and the Mellis Report had rejected all of the defendant's allegations in the various objections taken to applications by the plaintiff for gaming licences and that the defendant's persistence in these allegations, notwithstanding all those rejections, demonstrate either that the defendant could not have any honest belief in the truth of what he wrote or that he pursued those allegations with some other animus against the plaintiff.
67 The defendant's persistence in these allegations in his defence of truth was the subject of a pleading skirmish over the period 2002-2004, when the plaintiff applied to strike out the defences of truth and contextual truth on the basis that the judgments of the Licensing Court were judgments in rem. He was successful at first instance: Ainsworth v Burden [2002] NSWSC 172; but that decision was reversed on appeal: Burden v Ainsworth (2004) 59 NSWLR 506. Special leave to appeal was refused by the High Court on 30 April 2004.
68 On 25 June 2004, and following that ultimately unsuccessful pleading skirmish, the plaintiff's solicitors wrote to the defendant's solicitors identifying in general terms the way in which he sought to use the defendant's persistence in his defences of truth, stating in relation to the particulars of that defence supplied on 5 February 2001:
At the outset, we emphasise that your letter of 5 January 2001 [ scil 5 February 2001] makes extremely grave allegations against to [ sic ] our client. Allegations of this kind require to be made in good faith and with the fullest particularity. It is improper to make such allegations for the purpose of delaying or frustrating an opponent's claim.
Your client is well aware that virtually all of these allegations have been the subject of repeated investigation by the Licensing Court and have been found to be without foundation. Yet your client seeks to reventilate all these matters in the knowledge that they have been found to be groundless, and, more seriously, in the knowledge that they have provided no impediments to our client being associated with gaming licences.
Your client's particularization of these matters is a transparent attempt to delay or frustrate the prosecution of our client's claim.
On 15 October 2004, the plaintiff's solicitors again complained of the particulars of truth supplied, stating that they had been "the subject of exhaustive inquiry in various Licensing Court proceedings", that the defence of truth "constitutes an abuse of process" and that the defendant's attempt to raise the issues of truth in these proceedings "is vexatious and an abuse of process".
69 The absence of bona fides on the part of the defendant in his persistence in his defence of truth was thus fairly, and constantly, raised in the correspondence well prior to the date of the trial. In order to establish that absence of bona fides, it was absolutely essential for the plaintiff to prove the contents of the judgments which are said to demonstrate to any honest-minded person that the defendant's allegations were untrue. No legal representative of the defendant could have understood otherwise. The plaintiff was, of course, at fault in not making this clear in the particulars filed with the pleadings, but it was clear beyond any doubt in the correspondence well before the date of the trial that the plaintiff's complaints could only be established by the tender of the contents of the Licensing Court judgments.
70 The contents of the Mellis Report similarly are said to demonstrate to any honest-minded person that the defendant's allegations were untrue. That report had not been the subject of any prior notice in the correspondence but, at least so far as it deals with the objections taken by the defendant in the Licensing Court and the allegations made in his letter to the Police Minister, the addition of the contents of that report to the evidence in the trial goes no further than the judgments of the Licensing Court other than further confirmation, after a fresh investigation, that the allegations were untrue. The defendant could not therefore have been prejudiced by the inclusion of the later Licensing Court judgments and the Mellis Report in the particulars.
71 The case the plaintiff wished to put forward in aggravation of damages was rejected by the judge in his second judgment on the seventh day of the trial (the "encapsulation" judgment), on the basis that it had been "abandoned" as a result of the letter dated 14 March 1997 in response to a request for particulars of the claim for aggravated damages in the Statement of Claim (which remains there) stating that "[t]he claim for aggravated damages is not presently pressed": The judge added:
I have ruled that that claim … may not be litigated in this hearing, save and except to the extent it may arise in consequence of the conduct of the defendant and his legal advisers during the course of the proceedings from last Monday until now.
The reference to "last Monday" appears to have been intended as a reference to the letter dated the first day of the trial (4 April) - partly quoted in par [41] supra - which gave notice of reliance on a statement which had been made in court by leading counsel for the defendant "in aggravation of damages". The plaintiff's reliance on the particulars of malice in support also of his claim for aggravated damages was made clearer during the course of the trial.
72 The letter of 14 March 1997 stating that the plaintiff did not "presently" press his claim for aggravated damages was written before the defendant had pleaded any defence to the action. The defence of truth which the defendant included in his original Defence filed on 27 March 1997 did not include the particulars of truth contained in his Amended Defence filed much later and which are referred to briefly in par [18] supra. The detailed particulars of the defence of truth were supplied in the 111 page letter of 5 February 2001. As already pointed out, the plaintiff attempted to have those particulars struck out during the period 2002-2004 and, when ultimately unsuccessful, he attacked the bona fides of the defendant in his persistence in his defence of truth (pars [68] - [69] supra).
73 It is, with respect, difficult to see how in these circumstances a conclusion that the plaintiff's claim for aggravated damages had been "abandoned" was fairly open to the judge. No practitioner experienced in defamation litigation (as the defendant's various counsel over the years undoubtedly were) - knowing that the state of mind and conduct of the defendant are always relevant to both issues of malice and aggravated damages - could have been misled into believing that the plaintiff's claim for aggravated damages had been abandoned merely because of his failure specifically to identify all of these matters relevant to malice as also being relevant to his claim of aggravated damages.
74 Nevertheless, just as the additional particulars of the plaintiff's case on malice did not raise any issues which had not already been raised some time earlier by the pleadings, particulars and correspondence in one form or another as the case stood on the first day of the trial, so also reliance on the same particulars previously supplied of malice and added to on the first day of the trial as establishing the plaintiff's claim for aggravated damages did not raise any new issues which had to be met by the defendant. The judge's initial findings - that the amendment sought by the plaintiff would leave the defendant unable to deal with the later judgments of the Licensing Court and the Mellis Report "without a substantial amount of work", and would impose such a burden on the "defendant's side of the record" that the amendment should not be allowed - were either based on a misunderstanding of the issues involved in the amendment sought or made without due consideration of the coincidence of those issues with the issues already raised in the case before the amendment was sought. It may be, of course, that the judge's endeavours to ensure that the trial proceeded in accordance with "the principles and practices governing the orderly conduct of litigation" did not allow him adequate time to give to the problem the consideration it deserved, but that approach has been shown to have been erroneous where the refusal of an amendment shuts a party out from litigating issues which are fairly arguable.
75 At the end of the trial, the judge changed the basis on which he rejected the amendments sought to the particulars of malice. In his earlier judgment, the judge had accepted that the ill-health of the defendant (a matter dealt with at pars [79] - [80], infra) would impose yet a further burden on him were he required to deal with the additional matters raised by the amendment sought by the plaintiff, but he rejected the application to amend because of the burden imposed "on the defendant's side, whether or not the defendant's ill-health is taken into account" was such that the amendment should not be allowed (see par [60] supra). This ill-health appears to have assumed somewhat greater importance when the judge finally accepted that this burden on the defendant's side was considerably less than he had originally thought.
76 The plaintiff had argued throughout the seven day trial that - as the defendant had pleaded truth and, in accordance with his very detailed particulars of truth supplied on 5 February 2001, had intended to establish the truth of all of the allegations made in the Licensing Court and in his letter to the Police Commissioner - the defendant would equally be in a position to meet a case by the plaintiff that the allegations were false and that either he had no honest belief that they were true or he knew that they were false as a result of the Licensing Court judgments and the Mellis Report. His case in answer to such an alleged state of mind - as it always is for a defendant in such a position - would be to point to the evidence on which he relied to establish the truth of those allegations. This was so even after the withdrawal of the defences on the sixth day of the trial, the plaintiff argued, because the defendant had been ready to litigate the truth of his allegations.
77 In his first judgment on the seventh and last day of the trial, and no doubt as a result of that further argument, the judge did accept that, on the face of the particulars of truth supplied, there was such an overlap between the issues raised in relation to the defence of truth and the case the plaintiff sought to make in the amendments applied that the expansion of that case "would involve relatively little, if any, additional work on the part of the defendant or his legal representatives". The judge suggested, however, that such a view depended on the defendant having been ready to litigate the truth of his allegations at the commencement of the trial. He held that defendant probably had not been ready to litigate the truth of his allegations. This line of reasoning is made clear by the passage from his judgment on that day quoted in par [61] supra.
78 In that passage, the judge said that he had been influenced in forming the view that the defendant was probably not ready to litigate the issue of truth by (i) the absence of the defendant as one of the "principal witnesses" to be called in his case identified by his leading counsel to the jury panel before the jury was selected in accordance with s 38(8) of the Jury Act 1977, and (ii) the withdrawal of the defences. The defendant's ill-health must nevertheless necessarily be considered in connection with the judge's finding that the defendant was not ready to litigate the issue of truth.
79 On the Friday before the trial commenced, G James J heard an application by the defendant for a permanent stay of the proceedings. The application had been filed sometime earlier but, for reasons which are unknown, it did not come on for hearing before then. Medical evidence was led that the defendant was suffering from life-threatening cardiac problems, that he will not get better, that he has a preoccupation (or an obsession) with this litigation and that stress exacerbates his medical condition. On behalf of the defendant, it is said that this condition followed a heart attack just before last Christmas necessitating a quadruple by-pass operation. The medical reports before G James J say that it would be life-threatening for the defendant to attend court or to give evidence, but (the reports say) the defendant is nevertheless able to give instructions. One of the defendant's doctors said in his report that the stress involved was to a great extent generated by the defendant's fear of bankruptcy, but it transpired that the doctors had not been told of the State Government indemnity in favour of the defendant (see par [62] supra). The application for a permanent stay was refused on the basis that there was no basis on which such a stay could be granted where the alleged tortfeasor was disabled by reason of a condition outside the control of the courts and through no fault of the plaintiff: Ainsworth v Burden [2005] NSWSC 338 at [17]. G James J emphasised (at [19]) that no application had been made for an adjournment. Nor was any application for an adjournment made to the trial judge.
80 There was some debate before this Court as to the prejudice suffered by the defendant as a result of his ill-health, assuming it to have been relevant to the continuation of the proceedings. Leading counsel for the defendant claimed a complete inability to obtain instructions from his client (Appeal Transcript, T 25). However, the medical evidence before G James J was that the defendant's difficulty was in giving evidence and attending court, but that he could nevertheless give instructions. It was conceded that the defendant had not given evidence in any of the matters before the Licensing Court, so that his evidence was not required in order to establish his defence of truth.
81 Counsel for the defendant was asked to identify any other issue where his client's evidence would have been necessary in the trial. He nominated the following statement on pages 16-17 of the particulars of truth supplied on 5 February 2001;
The Plaintiff at the trial will rely on Notices of Objection filed by the Commander of the Licensing Agency in the Licensing Court at first instance and on appeal, on the evidence led on this issue, and on the general practice of Licensing Courts to give great weight to such findings, based on the Defendant's expert knowledge as the former Commander and the person who was responsible for the preparation of the Licensing hearing (as advised by those members of legal profession retained for the presentation of such objections).
It was accepted that the reference to "The Plaintiff" in the first line was intended to be a reference to "The Defendant". The defendant's evidence was required at the trial, it was said, to refute an interpretation of that statement which accepted that the defendant had any responsibility for the objections filed and/or the conduct of the proceedings in the Licensing Court after he had retired. Even if he were able to give evidence, the defendant might well have had some difficulty in explaining the reference there to his expertise as a "former Commander". But such an interpretation could always be explained by calling the author of the 111-page letter of 5 February 2001 to say that the defendant had never given instructions from which such an interpretation could be conveyed. Once the jury was appropriately informed that, on medical advice, it would be life-threatening for the defendant to give evidence, he would be entitled to a favourable direction in accordance with Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321.
82 The defendant's ill-health will nevertheless prevent him from attending in court. This will produce an inconvenience for his lawyers in court, one which the trial judge would no doubt keep in mind, but he is not prejudiced by that difficulty in disputing the merits of the case.
83 The judge reached his finding that the defendant had not been ready to litigate the issue of truth without the issue being raised by or with the parties. Before this Court, leading counsel for the defendant said (Appeal Transcript, T 39):
Nowhere did I say we weren't ready, what I said was we could not call the defendant. It is not a question of not being ready.
The absence of the defendant's name amongst his "principal witnesses" is consistent with the existence of that ill-health. In the absence of any other material, and in the light of the exceedingly detailed particulars of the defence of truth supplied in 2001, the absence of his identification as a witness cannot justify the conclusion that the defendant had not been ready to litigate the issue of truth. The withdrawal of the defences is equally consistent with a realisation by the defendant or of those advising him that the defences cannot succeed. Had the judge raised the defendant's readiness to litigate the issue of truth with the parties before reaching the conclusion that he was not ready, he would have realised that such a finding was not open to him. His finding resulted from a procedural error in reaching such a conclusion without hearing the parties in relation to that issue.
84 It follows that each of the bases on which the judge exercised his discretion to refuse the application to amend the particulars of malice and to supply particulars of his claim for aggravated damages resulted from an error he made. He erroneously permitted the efficiency of the court procedures to prevail over the injustice caused by shutting the plaintiff out from litigating issues already included in the pleadings and which were clearly arguable, on the basis of case management principles. The judge initially either misunderstood the issues involved in the amendment sought or failed to give due consideration to the coincidence of those issues with the additional matters sought to be raised. He subsequently accepted the coincidence of those issues, but nevertheless affirmed the earlier rejection of the application as a result of a procedural error in reaching a conclusion, without hearing the parties, that the defendant had not been ready to litigate those issues.
85 The exercise of the judge's discretion to reject the amendment sought therefore miscarried. The rejection of the application to amend caused an injustice to the plaintiff, and it is thus this Court's duty to review the order made and, if appropriate, to exercise its own discretion in determining whether that application should be allowed.
86 In my opinion, it is appropriate for this Court to determine the application to amend. The argument in the appeal was both comprehensive and complete. I would allow the application. The amount of additional work "on the defendant's side" caused by the grant of the amendments was infinitesimal. The lateness of the application would in fairness to the defendant have warranted an adjournment of the trial for at least a short period to enable the defendant the opportunity of considering his position, and of giving further instructions to his legal representatives if necessary. The maximum adjournment I would have given in the place of the trial judge - allowing for the necessity for the defendant's lawyers to consult with him, and his inability to attend court (pars [80] - [82]) - would have been for the remainder of the second week of the trial, or three days. The trial date was lost as a result of the objections taken by the defendant to the amendment sought, and the necessity to obtain leave to appeal from the errors made by the judge in accepting those objections. The plaintiff should not, therefore, be responsible for the costs incurred as a result of the trial date being lost. The plaintiff will nevertheless be liable to a costs order against him for leaving it to the last moment to make his application to amend, but the extent of that costs order will have to be determined in the light of all the issues in this appeal.
The relevance of truth and falsity
87 One of the recurring problems during the trial was an apparent misconception as to the relevance of truth and falsity in an action for defamation, and as to the need for particulars to be given of a claim that the matter complained of was false where the defendant is not relying on a defence of truth. For example, after the defence of truth had been withdrawn, the judge said, when encapsulating his rulings (in the second judgment on the seventh day of the trial):
A third issue is whether or not the plaintiff is entitled to give evidence on the question of truth or falsity of the imputations. As I see it, that matter does not arise on the statement of claim once the claim for aggravated damages is ignored, and insofar as it arose on the defence of truth that defence has been abandoned, hence no issue of truth or falsity seems to me to arise. It is a matter which in the circumstances of this case in my view would require to be the subject of, if not pleading at least clear particulars indicating that it did arise.
In case the same issue arises in the new trial, it is important to say that such a view is not correct. Whether particulars of a claim of falsity need to be given depends on the use to which that claim is put.
88 The objective truth or falsity of the matter complained of is irrelevant to its defamatory nature. To say of a solicitor that he is dishonest is injurious to his reputation (and thus defamatory of him), and it does not become less injurious because the statement is true. To say of a member of the Bar (irony aside) that he is universally regarded as the best advocate in Sydney is not injurious to his reputation, and does not become injurious because the statement is false. That there is simply no relationship at all between the defamatory nature of a statement and its truth or falsity is well illustrated by Spencer Bower, Law of Actionable Defamation (2nd ed, 1923) at 236-237. See also Clines v Australian Consolidated Press Ltd (1965) 66 SR 321 at 327; Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205; Ross McConnell Kitchen v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 at 847.
89 A plaintiff is nevertheless always permitted to nail the matter complained of as a lie: Australian Consolidated Press Ltd v Uren at 205; Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729 at 743; Defamation Act, s 47. Such an assertion of falsity is not a claim for damages; it is, in effect, a remedy which the law of defamation provides, originally thought (on one version at least) to have been provided in order to discourage the practice of duelling or other breaches of the peace. If the plaintiff does assert the falsity of what was published, the defendant is entitled to meet that claim by demonstrating that what was published is true: Howden v Truth & Sportsman Ltd (1937) 56 CLR 416 at 432-433; Rigby v Associated Newspapers Ltd (No 2) at 739. The Rules of the Supreme Court - other than Part 15 r 13(1), requiring matters which may otherwise take the defendant by surprise to be pleaded by the plaintiff - do not require particulars to be given with the pleadings of the claim that the matter published is false. If no notice has been given of the claim of falsity, there is no obligation on the defendant to give particulars of a response that the matter is true. Part 67 r 18(2), which requires particulars to be given of a case in mitigation of damages, is irrelevant in such a case.
90 The falsity of the matter complained of becomes relevant to the issues in the trial, and therefore to the particulars which must be given, only in relation to the extent to which the plaintiff claims that the mental distress and the hurt to his feelings caused by the defamation are increased because of that falsity: Rigby v Associated Newspapers Ltd (No 2) at 738. Such a claim is one for aggravated damages: Ibid at 738; see also King v John Fairfax & Sons Ltd [1983] 1 NSWLR 31 at 33; Singleton v Ffrench (1986) 5 NSWLR 425 at 442-444. Particulars of such a claim are required by Part 16 r 5B.
91 It was therefore open to the plaintiff in the present case to assert the falsity of the allegations made by the defendant in his letter to the Police Minister in order to nail the lie, and - subject to Part 15 r 13(1) - to do so without giving any particulars. In the present case, there could have been no surprise to the defendant by such an assertion, as he came to trial ready to litigate the truth of his allegations. If, however, the plaintiff were to have gone further and asserted a greater injury to his feelings because those allegations were false, he would have been debarred from doing so in the absence of particulars or other adequate notice of a claim for aggravated damages having been given to the defendant.
92 The ruling made by the judge preventing the plaintiff from merely asserting the falsity of the defendant's allegations (quoted in par [87] supra) was therefore wrong. It was also wrong because of the judge's errors in finding that the plaintiff had abandoned his claim for aggravated damages and that the defendant had not been ready to meet such a claim.
Admissibility of the contents of the Licensing Court judgments and of the Mellis Report
93 I return now to the issues relating to the admissibility of the contents of these documents (see par [49] supra).
94 The contents of the Licensing Court judgments and of the Mellis Report were not tendered in order to prove the truth of what was said in those documents. Although each of the plaintiff's imputations is that he is not a fit and proper person to be involved in various aspects of licensed gaming, and although each of those documents make findings that the plaintiff is a fit and proper person to be involved in licensed gaming, the documents were not tendered to prove the truth of those findings. On the basis that the defendant was aware of the contents of those documents (see par [48] supra), they were tendered in order to demonstrate that the defendant's state of mind or conduct in continuing to assert the truth of the allegations he made in his letter to the Police Minister - in the face of the constant rejection of those allegations - was evidence of malice destroying any privilege claimed and a matter in aggravation of damages. On that basis, the contents of the documents were admissible.
95 The judge rejected the documents on different bases, although he reserved until later in the trial the admissibility of parts of them in accordance with the Evidence Act (as business records pursuant to s 69). The principal basis for the rejection of those documents - and, in particular, for the rejection of the Mellis Report - was that they were unfairly prejudicial to the defendant. This was a reference to s 135 of the Evidence Act, which provides:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; […].
96 Of the Licensing Court judgments, the judge said (in the first judgment on the fifth day of the trial) that they would "undoubtedly be greatly prejudicial to the defendant" because:
I think it practically impossible for a jury to put out of their mind when they are asked to decide the truth or otherwise of the suggestion that the plaintiff is not a fit and proper person, that five courts, or perhaps one court on five occasions, has found that he was a fit and proper person and rejected a number of the issues raised by the defence here.
The sting of the documents, to my mind, lies in not only the finding that the plaintiff was fit and proper, but a finding in the face of contest, and detailed contest, on that issue and a finding, not only once but on at least four occasions and on the fifth, statements to the effect that after thorough enquiry the police have no objections to raise.
97 Of the Mellis Report, the judge said (in the judgment of the third day of the trial) that it:
[…] is liable to have a prejudicial - possibly heavily prejudicial, effect in that respect. That prejudicial effect would be unfair.
The judge expanded on this view (in the second judgment on the fifth day of the trial), when discharging the jury because senior counsel for the plaintiff had referred to the Mellis Report in the course of his opening address:
I have concluded that Inspector Mellis's report is not admissible in the course of the case and although I have not published my full reasons I have indicated that in large measure my conclusion was influenced by the terms of s 135 of the Evidence Act and, I may add specific reference to subpara (a).
Among the defences pleaded is one of truth and that is obviously a central issue in the case.
[…]
In its terms the report is of substantial weight in opposition to the claim by the defendant as to the truth of the publication. As counsel for the plaintiff pointed out to the jury, Inspector Mellis's investigation was extensive and, I may add, he was firm in his conclusions.
In no insignificant measure it is indeed the force in Inspector Mellis's report which has led me to conclude that it should not be admitted because, while his conclusions are not as I would see it evidence which the jury could take into account on the issue of the plaintiff's fitness or as to the truth of the matters alleged in the defendant's letter, I would see it as almost impossible for the jury to put what Inspector Mellis had said out of their mind.
There would be great danger that what he had to say might be unfairly prejudicial for a party, indeed I would put the matter more highly, and this notwithstanding that as a general proposition I take the view that jurors are able to adhere to judge's rulings as to what they can or cannot take into account. My decision in this case is influenced in large part by the strength of the Mellis report, at least on its face.
This strength, and the emphasis which was placed on the terms of the report by counsel for the plaintiff in his opening, lead me to the conclusion that I should grant the application to discharge the jury.
98 Following the defendant's withdrawal of his defence of truth, and when the issue of the admissibility of the Mellis Report was again being argued, the judge accepted (in the first judgment on the seventh day of the trial) that the document could be relevant to the issue of aggravated damages in the event that the conduct of the defendant or his counsel became relevant to the very limited basis on which he would permit that issue to be raised - that is, if the truth of the imputations was maintained during the seven days since the trial was listed for hearing. In effect, he left this issue to be determined in the course of the trial, saying:
Previously, while truth was one of the defences relied on, I rejected the Mellis report pursuant to the terms of s 135 of the Evidence Act . I did so because of what I see as the prejudicial effect of that report. That prejudicial effect and particularly the danger of it to my mind still exists, though not with anything like the strength which it did previously. Because of it I do not think I should go further in deciding whether Mr Mellis's report will be admitted. I think that decision should be made when the plaintiff's case is much further advanced and some judgment can be made on the extent to which there is evidence upon which a claim for aggravated damages may be based.
The judge returned to this issue when encapsulating his decisions (in the second judgment on the seventh day of the trial):
A fourth issue concerns the admissibility of the Mellis report. I have indicated that I think that report may well be relevant as part of the background against which any claim for aggravated damages based upon the defendant's conduct of the proceedings since the beginning of last week should be considered, but I deferred a final ruling on the admissibility of that document until that claim of the plaintiff had been advanced, probably by evidence.
My reservation arose partly because of what I see as the prejudicial effect of Mr Mellis's report, in particular insofar as it expresses Mr Mellis's opinion on the issue of the plaintiff being a fit and proper person, the contrary being the tenor of the imputation alleged. I held last week when truth was an issue raised by the defence that I would, pursuant to s 135 of the Evidence Act, exercise my discretion not to permit the tender of that report and if truth or falsity is or remains an issue in the case, notwithstanding the withdrawal of the defence, or becomes an issue by reason of any further amendment of the pleadings or particulars I would again reject the tender of Mr Mellis's report. The report's prejudicial nature also caused me to defer a final ruling until evidence on the topic of aggravated damages arising from the conduct of the case demonstrated that the report should be admitted.
On each occasion, the judge made it clear that parts of the Mellis Report may be admissible in accordance with the Evidence Act , but that does not support the judge's rejection of the use of the document for the purpose for which the plaintiff sought to use it - to demonstrate in support of his case on both malice defeating qualified privilege and aggravated damages that the defendant had persisted in his defence of truth notwithstanding that all of the matters on which he relied had been investigated and dismissed in that report, as well as in the Licensing Court judgments.
99 The judge has wrongly interpreted what is comprehended by the expression "unfairly prejudicial" in s 135. It is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent's case. The phrase "unfairly prejudicial" or the cognate phrase "unfair prejudice" is used not only in s 135 but also in s 136 and s 137, and the meaning to be given to each of those phrases must be the same - whether or not a weighing exercise is contemplated: Regina v BD (1997) 94 A Crim R 131 at 139. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the case of the party tendering it; it means prejudice which is unfair to the other party because there is a real risk that the evidence will be misused by the jury in some unfair way: DPP v Boardman [1975] AC 421 at 456; The Queen v Duke (1979) 22 SASR 46 at 47-48; Scott v The Queen [1989] AC 1242 at 1258-1259; Regina v Masters (1992) 26 NSWLR 450 at 479; Pfennig v The Queen (1995) 182 CLR 461 at 487-488, 528; Regina v BD at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]. See also ALRC 26, vol 1, pars 644, 957.
100 In the present case, the plaintiff relies on the very facts (1) that the Licensing Court on four occasions, in the face of detailed contests, rejected the same allegations made by the plaintiff in his letter to the Police Minister and found that the plaintiff was a fit and proper person, and on another occasion because, after a thorough inquiry, the police had raised no objection to the grant of a licence; and (2) that Detective Chief Inspector Mellis reached firm conclusions, in a forceful report, rejecting the allegations made by the plaintiff in his letter. It is the strength of the findings in each case, and the forceful way in which Chief Inspector Mellis couched those findings, that the plaintiff says should have demonstrated to any honest-minded person that the defendant's allegations were untrue. It was of vital importance to the plaintiff's case on malice and aggravated damages to prove the defendant's perverse persistence in the truth of his allegations in the face of constant rejection of those allegations, after investigation, by the Licensing Court and in the Mellis Report. The material was strongly probative of the plaintiff's case on malice and damages.
101 In those circumstances, the evidence could be excluded only if its probative value to the plaintiff's case was "substantially outweighed" by the danger that the evidence might be unfairly prejudicial to the defendant. Even if there was a danger that the strength of the evidence supporting the plaintiff's case could have some effect on the jury's view of the defendant's claim that the allegations were true, that does not mean that its probative value and importance to the plaintiff's case are substantially outweighed by that danger. It is only by erroneously interpreting the expression "unfairly prejudicial" in the way the judge did that such evidence could have been rejected in the balancing exercise required.
102 At the stage when there was a defence of truth still being put forward by the defendant, the judge appears to have concluded that, because he thought that the jurors would find it "practically impossible" to put the documents out of their minds when considering the defence of truth, the perceived prejudice could not have been cured or reduced pursuant to s 136 of the Evidence Act by limiting the use to which the documents could be put to that for which they were tendered. In a sense, the judge's conclusion only demonstrates the strength of the plaintiff's case that these documents would have persuaded any honest-minded person that the allegations were false, and thus their importance to the plaintiff's case.
103 When the defence of truth was withdrawn, and the issue of truth or falsity was of less importance to the defendant's case because it was relevant only to damages (see pars [90] - [91] supra), the consideration of a direction pursuant to s 136 became all the more important. Such an order could not have prejudiced the plaintiff, who was in any event prevented by the Evidence Act from using the Licensing Court judgments in order to prove the falsity of the allegations (see par [109] infra). He did not seek to use the judgments or the Mellis Report for that purpose. A strong direction to the jury would of course have been needed, both at the time of the tender and in the summing-up, as to the limited use to which the documents could be put. At that stage, however, the judge said that, notwithstanding the withdrawal of the defence of truth, should the truth or falsity remain an issue in the trial in any way, he would again reject the evidence on the basis of prejudice to the defendant's case. The only way in which truth or falsity remained relevant (as it always had been relevant) was to the issue of damages.
104 It was submitted by the plaintiff that this ruling by the judge after the defence of truth had been withdrawn was so unreasonable as to be unsupportable, and that sufficient basis for interfering with his decision in accordance with House v The King. I accept that there is considerable force in that submission, as the part which falsity could play in relation to damages is very much less than it would have played in relation to a defence of truth. It is, however, sufficient to say that the decision could only be justified by the judge's erroneous interpretation of s 135, that evidence which proved or supported the plaintiff's case was unfairly prejudicial to the defendant within the meaning of that section. That was the fundamental error which the judge made.
105 Nor was there any real scope for the application of s 135 on the basis that the defendant would be procedurally disadvantaged by the admission of this evidence, assuming that such a disadvantage falls within s 135, an issue on which there is conflicting authority and which need not be resolved in the present case: cf Commonwealth v McLean (1996) 41 NSWLR 389 at 400-402; Papakosmas v The Queen at [93]; Ordukaya v Hicks [2000] NSWCA 180 at [6], [35] - [40]; Regina v Clark (2001) 123 A Crim R 506 at [164]; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55]; Regina v Suteski (2002) 56 NSWLR 182 at [126] - [127]. According to the plaintiff's case, the defendant had been involved in each of the Licensing Court proceedings either as the former Commander of the Licensing Investigative Unit within the Police Service or the person who was responsible for the preparation of the Licensing Court hearings, so he had previously had an opportunity to test (or to have tested) the material which the Licensing Court had accepted. Similarly, he was involved in the inquiry by Chief Inspector Mellis, and had had assisted that inquiry with avenues of investigation.
106 The rejection of the documents pursuant to s 135 was therefore erroneous.
107 The other basis considered for the rejection of the Licensing Court judgments was s 91 of the Evidence Act, which provides:
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
108 The judge referred in the judgment on the second day of the trial to the fact that he had indicated during argument that he did not regard the judgments as being admissible having regard, particularly, to the terms of s 91, and he returned to the subject when the plaintiff tendered what were described as the coversheets of the Licensing Court judgments in response to the indication he had given during argument that s 91 prevented the tender of the judgments themselves. In the first judgment given on the fifth day of the trial, the judge expressed the view that even these coversheets ran into problems with s 91, although he acknowledged that s 91(2) would have permitted their tender where not tendered to prove the facts found in the judgments, that the plaintiff was a fit and proper person to hold a gaming licence. He nevertheless held that they were inadmissible because of s 135.
109 It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose - as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant's allegations were false - they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act. In any event, the facts which the coversheets would have established were that a company associated with the plaintiff had made an application for a gaming licence, the police had objected to the grant of that licence, the terms of the grounds of objection, the rejection of the objection and the grant of the licence. None of the those facts was "a fact that was in issue" in the Licensing Court proceedings, and s 91 did not exclude the coversheets stating those facts.
110 In my opinion, therefore, the judge erred in rejecting the Licensing Court judgments and the Mellis Report, and they should have been admitted on the material which was before him.
Relevance of the defendant's conduct
111 The plaintiff complains of the restriction imposed by the judge on his case of aggravated damages based on the defendant's conduct to his conduct since the first day of the trial. A passage from his second judgment on the seventh day of the trial quoted earlier (in par [98] supra - the paragraph commencing "A fourth issue") refers to the claim being "based upon the defendant's conduct of the proceedings since the beginning of last week". The judge had also said (in the first judgment on the seventh day of the trial):
The defence of justification was maintained from the commencement of these proceedings on Monday of last week until yesterday. It is accepted by counsel for the defendant and something which I would have held in any event that the conduct of a defendant and his counsel during the course of a hearing may be relevant on the question of aggravated damages. Counsel accepted that a claim in that regard was still available to the plaintiff if otherwise the requirements of aggravated damages were established […].
112 The plaintiff submits that the jury was entitled to consider in assessing damages the whole conduct of the defendant from the time he sent his letter to the Police Minister down to the time it gives its verdict: Praed v Graham (at 55); Triggell v Pheeney (at 513); and that the judge was in error in imposing such a restriction. That submission is correct. The judge's ruling, however, appears to have been based on his earlier ruling that the plaintiff had abandoned his claim for aggravated damages when he said in 1997 (before the defendant had even pleaded) that his claim for aggravated damages was "not presently pressed", and his refusal to permit the plaintiff to supply particulars of that claim (see par [71] supra).
113 I have already held that the judge erred in that ruling (par [73] supra). As I have also allowed the plaintiff's application to supply particulars of his claim for aggravated damages (par [86] supra), the plaintiff may rely in the new trial (subject to the particulars being updated) on the defendant's conduct from the time of publication in aggravation of damages in accordance with that authority.
Other issues raised in the appeal
114 In his Notice of Appeal, the plaintiff sought orders setting aside each of the rulings made by the trial judge during the course of the trial, and making rulings on each issue in his favour. That would not be appropriate. At a new trial, the trial judge is not bound by the rulings made at the earlier trial. In this judgment, I have:
(i) held that the judge was in error when he prevented senior counsel for the plaintiff from referring to the plaintiff's claim for damages in relation to his Nevada dealings in his opening address to the jury (par [40], supra );
(ii) allowed the application to amend the particulars of malice and to supply particulars of aggravated damages made on the second day of the trial (par [86], supra );
(iii) held that the judge erred in rejecting the Licensing Court judgments and the Mellis Report and that they should have been admitted on the material before him (par [110], supra ); and
(iv) held that the plaintiff may rely in the new trial (subject to the particulars of aggravated damages being updated) on the defendant's conduct from the time of publication in aggravation of damages (pars [112] - [113] supra ).
Those rulings will protect the plaintiff from suffering from similar errors being made in the new trial. The additional particulars of malice and the particulars of the claim for aggravated damages to be supplied may be reformulated as well as up-dated from those identified in the letter of 4 April 2005.
115 The defendant has applied for the following orders:
(i) That the plaintiff file an amended statement of claim in which any claim for aggravated damages is fully particularised. Particulars should also be supplied of any claim for general compensatory damages outside the usual heads of damages applicable to all defamation cases.
(ii) The defendant be at liberty to file a further amended Defence deleting those defences which have been withdrawn. Under the circumstances the defendant proposes to continue his defence of comment.
(iii) The plaintiff file a further amended Reply containing complete particulars of allegations of malice.
116 The defendant has not provided any submissions in support of the orders he seeks. The plaintiff has had no opportunity to respond. Although it is clear that there needs to be a substantial review of the state of the pleadings and particulars in this case, each of the first and second orders sought is not without some controversy, and it is not possible for this Court to make such orders without the assistance of proper submissions. This case was indeed far from being ready for trial when it was given a hearing date. Most of the issues which have arisen should have been the subject of applications in the Defamation List before the case was given such a date. In my opinion, that is where the defendant's application should now be made, so that the Defamation List Judge (rather than this Court) will have control of the proper preparation for the new trial.
Costs
117 The plaintiff has had complete success in the appeal and, in my view, he is entitled to the costs of the appeal. As to the costs of the trial:
(i) although the trial date was lost as a result of the objections taken by the defendant to the amendment sought and the necessity to obtain leave to appeal from the errors made by the trial judge in accepting those objections, and
(ii) whilst the plaintiff has been shown to have been entitled to the rulings and the amendments he sought during the trial,
he must (as I have already said - par [86] supra) suffer a costs order against him for leaving it to the last moment to make his application to amend (although he should not be responsible for the costs incurred as a result of the trial date being lost). Taking those matters into account, I would order the plaintiff to pay one-third of the defendant's costs of the seven days of the trial.
Orders
118 I propose that the following orders be made:
1. The appeal is allowed.
2. The plaintiff's application to amend the particulars of malice and to supply particulars of his claim for aggravated damages is allowed.
3. The plaintiff is to pay one-third of the defendant's costs of the seven days of the trial.
4. The defendant is to pay the plaintiff's costs of the appeal.