Brose v Baluskas & Ors

Defamation Act 2005 (Qld) s 26, s 38.

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125, cited.

Australian National Airlines Commission v The Commonwealth [1975] HCA 33; [1975] 132 CLR 582, cited.

Fairfax Media Publications v Zeccola [2015] NSWCA 329; [2015] 91 NSWLR 341, cited.

Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19, applied.

B Goldsmith (sol) for the respondent / cross applicant first and second defendants

No appearance by the third, fourth, fifth or sixth defendants

Bennett & Philp Lawyers for the applicant plaintiff

Goldsmiths Lawyers for the respondent / cross applicant first and second defendants

No appearance by the third, fourth, fifth or sixth defendants

[1] As outlined in previous judgments, this action concerns allegedly defamatory statements made about the plaintiff by various defendants. The matter has generated a number of interlocutory disputes.

[2] This is an application by the plaintiff to amend the statement of claim by deleting paragraphs 16(a) and 16(b). Those paragraphs plead imputations arising out of the second defendant's publication, namely:

(a) The plaintiff has had numerous complaints made about her by parents;

(b) Parents of children at the school have confronted her on the way she would handle situations regarding their child."

[3] The second defendant denies that the imputations are likely to lead an ordinary, reasonable person to think less of the plaintiff, and pleads that the imputations are not defamatory. The amended pleading lists the number of separate parents who have made complaints about the plaintiff in paragraph 43A, and similarly, referring to the imputation in paragraph 16(b), in paragraphs 43B to 43F of the amended defence.

[4] Litigation of the issues the subject of those pleadings would likely involve a large number of witnesses.

[5] In this context the plaintiff submits that she now accepts that the imputations pleaded in paragraphs 16(a) and 16(b) are not defamatory. Thus she seeks not to proceed on them and to remove them from the pleadings. She intends to proceed on the remaining subparagraphs of paragraph 16 of the amended statement of claim. They are, of course, much more subjective and descriptive than the specific allegations in paragraphs 16(a) and (b).

[6] The plaintiff submits that it is open to her to choose the way in which she conducts her case, including what imputations upon which she chooses to rely.[1]

[7] Thus the plaintiff submits that where she concedes those imputations are not defamatory, the court should permit the removal of those matters from the dispute rather than waste the parties' time on matters not contested. She submits that she should be permitted to properly confine her case, and the amendment should be allowed.

[8] In respect of the first and second defendants, whom this amendment most directly concerns, their stance is that although the foreshadowed amendment is not resisted, the first and second defendants have leave to file and serve an amended defence, in effect, raising the same allegations previously relied upon in support of a defence of contextual truth. The seventh defendant has taken a similar stance, although the application does not directly impact her case and right of audience thereon is questionable.

[9] The first and second defendants submit[2] that the imputations concerned have been part of the pleadings for a considerable time. They are said to be of considerable importance. It is said that they may have, separately, been responsible for the incurring of significant costs by the defendants.

[10] The defendants submit that the true reason for the plaintiff's withdrawal is not a reconsideration of the nature of the imputations rather, there is an ulterior purpose, namely the prevention of the defendants from being able to call a substantial body of evidence in support of their case. That body of evidence was previously available to the second defendant in support of a plea of justification.

[11] Although the defendants concede that it is largely a matter for the plaintiff to choose the imputations upon which she will rely, it is argued that she should not, at this late stage, be given this indulgence. The second defendant's legal representative advised the court that the second defendant did not oppose the granting of leave. Nevertheless the second defendant submits that he should be allowed to plead back those same imputations by way of a defence of contextual truth. In that way, the factual dispute sought to be avoided by the plaintiff's amendment would be reignited.

[12] As to a proposed defence of contextual truth, the second defendant argues that the pleadings and particulars relevant thereto are identical to the pleadings and particulars allowed by the court on 21 June 2019. It is now made necessary to reintroduce this as a new ground of defence in the context of the plaintiff's (tactical) decision to abandon her long standing pleaded imputations. The second defendant submits that disallowing such a course would be incongruous.

[13] The first and second defendants further seek to amend the pleadings by adding further grounds in support of mitigation of damages. This refers to details of settlements with other defendants in the action which is said to be relevant pursuant to s 38 of the Defamation Act 2005.

[14] Finally the first and second defendants seek leave to further amend by relying upon what is said to be an absence of honesty and candour by the plaintiff in relying on matters concerned with the Facebook link to the Change.org website at a time when the plaintiff knew that the said site and link had been removed. This is said to be misleading and supports the idea that the plaintiff's damages might be mitigated.

[15] The seventh defendant joins in the stance of the first and second defendants in opposing the tactical abandonment of those imputations. Reference is made to Australian National Airlines Commission v The Commonwealth[3] where Mason J said at 593:

"...it is central to our conception of the administration of justice that ... each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case."

[16] The seventh defendant also points to the statutory objects of the Defamation Act 2005 with particular emphasis on fair remedies. Thus it is argued that the plaintiff should not be permitted to abandon those imputations (which, so the argument apparently goes, may create some evidential problems for her) without permitting the second defendant to plead the same matters back and thus re-agitate the same dispute. The seventh defendant submits that such a procedure would have a "chilling effect" on others who may wish to speak out about similar misconduct by the plaintiff.

[17] The seventh defendant submits that the second defendant was not previously entitled to plead contextual truth, but now if the imputations are abandoned by the plaintiff the second defendant ought in fairness to be able to rely upon them. It is said that this does not result in prejudice to the plaintiff. Conversely, such a procedure would prejudice the second defendant by restricting his ability to call evidence going to the truth of those imputations. It is also said this prejudice flows onto other defendants in the proceeding.

[18] The plaintiff filed submissions in response to the application by the first and second defendants on 12 September 2019. She submits that the amendment concerning contextual truths should not be allowed. The grant of leave to plead, in support of mitigation of damages, sums received by the plaintiff from other defendants are not opposed. She opposes the grant of leave concerning allegations of dishonesty.

[19] In relation to the contextual truth defence it is submitted that it is an incorrect approach to the process of pleading to consider a "quid pro quo"; that is, perceived hypocrisy is irrelevant. Rather, the question is whether the second defendant has an arguable contextual truth defence or not.[4]

[20] It is pointed out that the second defendant denies that the imputations pleaded in paragraphs 16(a) and (b) are defamatory and pleads positively that they are not likely to lead an ordinary and reasonable person to think less of the plaintiff. The plaintiff's position is that on reflection she simply concedes this point. Thus it is appropriate for her to withdraw those alleged imputations.

[21] The plaintiff next submits that the implications do not support a contextual truth defence. She submits that s 26 of the Defamation Act 2005 (Qld) is premised on the existence of an additional defamatory sting not sued on by the plaintiff (a contextual imputation) which is substantially true; and therefore the defamatory imputations do not further harm the plaintiff's reputation because of the substantial truth of the contextual imputation. Thus, so submits the plaintiff, the defendant would need to plead and prove the substantial truth of contextual imputations which are clearly more serious than the plaintiff's imputations.[5] Thus, the plaintiff submits that in this case, the imputations not being defamatory at all, they cannot possibly satisfy that test.

[22] The plaintiff also refers to the other imputations in paragraph 16 of the amended statement of claim. The imputations in paragraphs 16(a) and (b) are therefore argued not to carry a contextual truth defence.

[23] The plaintiff rejects the idea that her position is hypocritical. Rather, it is submitted that the merits of the pleadings have simply been properly considered.

[24] As noted above, in relation to the sums received from other defendants, there is no objection to this amendment which can be argued at trial.

[25] The allegations as to the alleged dishonesty by the plaintiff are opposed. The plaintiff submits that the issue about the removal or rendering inaccessible of the Facebook link and site is not a material fact, in that the removal of a publication is not material to a defamation action, rather being relevant to quantum of damages. Further it was in no way hidden from the defendants; in any case they could have either themselves or though their representatives, searched for the page to see whether or not it was still accessible at any stage; clearly the third, fifth and seventh defendants knew that the site was taken down on 13 March 2016 because they pleaded same and those pleadings were replicated in a judgment of the court. This knowledge was clearly available to both the first and second defendants and their legal representative. Further, the first and second defendants' solicitor pleaded the fact that the publication was not read, seen or viewed after 13 March 2016, in a draft pleading of 22 May 2019. Thus it was clearly in the knowledge of the defendants and their legal representative at that stage.

[26] Thus the facts were not material and not concealed; the fact complained of has no relevance and the application should, in that aspect, be refused.

[27] As pointed out by the plaintiff, the defence of contextual truth was examined in some detail by Applegarth J in Nationwide News Pty Ltd v Weatherup,[6] particularly at [44];

Section 26 creates a defence which allows a defendant to rely upon imputations arising from the matter which are additional to, and differ in substance from, the defamatory imputations of which the plaintiff complains. The defence is established if those additional contextual imputations are substantially true, and if the defamatory imputations of which the plaintiff complains "do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations"; s 26(b).

[47] The task under s 26(b) is to consider the effect of the defamatory publication on the reputation of the plaintiff, and to decide whether the relevant imputations which the plaintiff proves were defamatory did not cause further harm to the plaintiff because of the substantial truth of the contextual imputations. Section 26(b), which is similarly worded to s 16(2)(c) of the Defamation Act 1974 (NSW), may be said to require the tribunal of fact to weigh and measure the relative worth or value of the several imputations contended for by both parties. The defence will fail if the plaintiff's imputations would still have some effect on the plaintiff's reputation, notwithstanding the effect of the substantial truth of the defendant's contextual imputations.

[48] Because of this, it is sometimes said that to succeed upon such a defence the defendant must prove that the contextual imputations 'swamped' or 'overwhelmed' the relevant imputations upon which the plaintiff succeeds. These expressions should be understood as shorthand, and not detract from the statutory language. The matters which establish the truth of the contextual imputations must have a powerful effect on the plaintiff's reputation compared to the effect of the imputations upon which the plaintiff succeeds. In practice this requires the defendant to plead and prove the substantial truth of contextual imputations which are clearly more serious than the plaintiff's imputations.

[49] The section does not contemplate an artificial weighing exercise by imagining the harm that would have been done by a publication that only conveyed the plaintiff's imputations, and then to separately imagine the harm that would have been done by a publication that only conveyed the substantially true contextual imputations. The observations of Basten JA in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369; (2014) 88 NSWLR 421 at 442 [86] suggest the following approach:

'... the tribunal of fact must consider holistically the effect of the defamatory matter on the reputation of the plaintiff, deciding at the end of the day whether, by reference to the imputations pleaded by both plaintiff and defendant, any imputations which have not been shown to be substantially true cause any further harm to the reputation of the plaintiff once the effect of the substantially accurate imputations has been assessed.'"

[29] Thus in this case, at the end of the day, the tribunal of fact - the trial judge - will need to consider the effect of the defamatory imputations on the reputation of the plaintiff and, if the relevant pleading of contextual truth is allowed to proceed, to thereupon decide whether the relevant imputations which the plaintiff proves were defamatory do not cause further harm to the plaintiff because of a substantial truth of the contextual imputations.

[30] In this case, this involves the weighing of whether the matters in sub-paras 16(d) to 16(i) resulted in no further harm being done to the plaintiff's reputation in the context of the findings as to (the former) 16(a) and (b); that is, in summary, the comparison on the one hand of the various descriptors in the imputations relied on by the plaintiff, relating to the publication, against, on the other hand, whatever the defendant is able to establish pursuant to evidence called in support of the contextual truth imputations; i.e. if it is proven to be true that many people were complaining about or confronting the plaintiff because of matters relating to her possessing the named characteristics, is it separately defamatory to publish that she did have the characteristics?

[31] It must be borne in mind that all the imputations relate to the same publication and the contextual truth imputations, relating as they do to numerous complaints and confrontations, are to be understood in the context of that publication and the fact that, in its terms, it relates the complaints and confrontations to the various qualities referred to in the ensuing sub-paragraphs. Further, this all falls to be analysed, as the plaintiff acknowledges, in the context that the second defendant has resort to a defence of justification to the imputation in 16(c) of the ASOC.

[32] Whether the contextual imputations do have the powerful effect contended for by the second defendant is, as outlined above, ultimately a matter for the tribunal of fact. Contrary to the plaintiff's submissions, in my conclusion it is not beyond argument that the imputations previously in sub-paras 16(a) and 16(b) cannot carry a contextual truth defence; it is not beyond argument that they might not be more serious than the remaining imputations such that they have a powerful effect on the plaintiff's reputation compared to the other imputations, such that they did not cause further harm because of the substantial truth of the contextual imputations.

[33] To frame the issue as a rhetorical question, why should the second defendant not be permitted, in the context of the argument about the remaining allegedly defamatory imputations, to plead and present evidence that there were complaints and confrontations, which related to the undesirable qualities referred to, and that the truth of this overcomes the effect of the rest of the imputations?

[34] It is always a matter for the Court to determine whether, as a matter of law, a pleading is capable of satisfying a statutory requirement, and such a determination is obliged to ensure the just, quick and cheap resolution of the real issues in the proceedings.[7] However on this occasion, the viability of the contextual truth defence is, as outlined above, not beyond argument. Thus I am not prepared to conclude this issue against the second defendant at this interlocutory stage, without the evidence relating to these matters being heard and weighed by the tribunal of fact. This is not to say that the second defendant will have success on this issue at trial - that is a matter for the trial judge - rather simply that the matter should not be summarily concluded against the second defendant at this stage.

[35] Thus the plaintiff's application to amend the pleadings will be allowed, however the second defendant's cross-application, to plead contextual truth in relation to the matters outlined, will also be allowed, with one qualification which follows.

[36] As the plaintiff points out in para 11 of her outline of submissions in reply, there remains a significant anomaly in the second defendant's proposed amended pleadings.

[37] The draft amended defence propounded by the second defendant at this stage pleads contextual truth in para 44. The elements of s 26 of the Act are pleaded therein. Sub-paragraphs (i) and (ii) reproduce the plaintiff's previous 16(a) and 16(b). Thereafter, the particulars of truth of the first contextual implication, in relation to the numerous complaints, sets out the complaints made by a large number of persons, many of whom are defendants in the proceedings. The second set of particulars deal with the various confrontations. Those matters are set out in B of para 44 and give details of a number of confrontations. However, curiously, sub-para (xiii) refers to a conclusion that the plaintiff was, and is, evil. This may be an unintended hangover from the previous version of the pleading, referred to in my previous judgment. In any case, it is difficult to see how this relates to the imputation about confrontations, particularly in the context of the second Baluskas publication. In my conclusion, therefore, this part of the amendment ought not be permitted. Further, I note that it might be more helpful if para (xi) were redrafted to relate more directly to the idea of the confrontations which are pleaded; however, that is a stylistic matter for the second defendant or his representatives.

[38] Thus, in conclusion on this point, the plaintiff's application will be allowed, as will the second defendant's cross-application, with the qualifications outlined above.

[39] The second part of the second defendant's cross-application relates to leave to amend by pleading, in support of mitigation of damages, sums received by the plaintiff from other defendants. This is, helpfully, not opposed by the plaintiff and thus the relevant leave is granted.

[40] Finally, the first and second defendants applied for leave to amend to allege dishonesty in relation to the manner in which the removal or rendering inaccessible of the Facebook link and site was not referred to by the plaintiff. In my view, the plaintiff's submissions on this point must be accepted. As set out in paras 13 to 22 of the plaintiff's submissions in reply, I accept that the removal or rendering inaccessible of the link and site was not a material fact going to the establishment of the plaintiff's right of action; that feature was not somehow hidden from the defendants, and a relevant document was disclosed by the plaintiff on three occasions. Third, this fact was easily ascertainable by the defendants or their representatives. Fourthly, the third, fifth and seventh defendants knew that the site was taken down on 13 March 2016, as they pleaded this fact and the pleadings were referred to in a previous judgment. Next, the first and second defendants' solicitor served a draft pleading on 22 May 2019 referring to this feature.

[41] Finally, as the plaintiff submits, the removal of the Facebook site does not necessarily mean that the second Baluskas publication was not read after 13 March 2016. In all the circumstances the amendments under this heading will not be permitted.

[42] The plaintiff has been successful in her application to amend by removing the imputations discussed; however this was not opposed. The defendants' cross-application was opposed and has been successful, but only in part. In all the circumstances, the costs of and incidental to both applications should be costs in the cause.

[1] Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [16]- [18].

[2] Reference is made to the written submissions and application filed by the defendants' solicitor. It developed that the solicitor was later given leave to withdraw. The first and second defendants became self represented, but also apparently forwarded submissions to the court at a time when their solicitor may have been still on the record. These submissions were not responded to by the plaintiff and have not been considered for resolution of the applications.

[3] [1975] HCA 33; [1975] 132 CLR 582.

[4] Fairfax Media Publications v Zeccola [2015] NSWCA 329; [2015] 91 NSWLR 341 at [89].

[5] Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 per Applegarth J at [48].

[6] [2017] QCA 70; [2018] 1 Qd R 19.

[7] Fairfax Media Publications v Zeccola (supra) at [88]-[89]