HER HONOUR: This is an action for defamation arising out of the publication of a series of articles in the Sydney Morning Herald. This judgment determines a contested application by the defendants for leave to amend their defence.
[2]
Circumstances in which the application is brought
The proceedings were commenced on 21 August 2014, shortly before the promulgation of Practice Note SC CL 4 which governs proceedings in the defamation list. As recorded in cl 7 of the practice note, the Defamation List is conducted with the aim of achieving the just, quick and cheap resolution of the real issues in the proceedings and promoting the objects of the Defamation Act 2005 (NSW). The objects of the Act (stated in s 3 of the Act) include the provision of effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter and the promotion of "speedy and non-litigious" methods of resolving disputes about the publication of defamatory matter.
In aid of its aims, the practice note contemplates that proceedings for defamation should be able to be prepared for hearing with no more than two listings before the court.
In the present case, the matters raised at the first listing of the proceedings were determined on 31 October 2014: Carolan v Fairfax Media Publications Pty Ltd [2014] NSWSC 1628. Following an amendment to the statement of claim in accordance with the rulings given in that judgment, a defence was filed on 9 December 2014.
The matters raised at the second listing of the proceedings were determined on 27 February 2015. On that date, as contemplated by the practice note, the proceedings were fixed for hearing on 19 October 2015 with an estimate of two weeks.
The orders made at the second listing required the plaintiff to serve a verified list of documents in answer to agreed categories for discovery on or before 30 April 2015. That was done. However, the defendants did not seek to inspect copies of the discovered documents until 8 July 2015, more than two months later. Copies were provided by the plaintiff's solicitor the following day on 9 July 2015.
On 10 July 2015, each party made an interlocutory application in the defamation list. Those applications were determined in my judgment in Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010.
On 30 July 2015, a subpoena was issued at the request of the defendants to South Sydney Football Club. Documents were produced in response to that subpoena on 4 September 2015. There is no suggestion that the delay in producing documents was due to any fault of the defendants.
On 20 and 25 August 2015, subpoenas were issued at the request of the defendants to the New South Wales Police Force and the Department of Customs and Border Protection.
On 11 September 2015, the plaintiff made a further interlocutory application seeking to have part of the defence struck out and the subpoenas to the New South Wales Police Force and the Department of Customs and Border Protection set aside. That application was determined in my judgment in Carolan v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1344. At the hearing of that application, the present application was foreshadowed.
The present application was brought forward on 18 September 2015, a month before the hearing date.
[3]
Principles to be applied in determining the application
Section 64(2) of the Civil Procedure Act 2005 (NSW) relevantly provides that all necessary amendments are to be made for the purpose of determining the real issues raised by or otherwise depending on the proceedings. However, that provision is expressly subject to s 58 of the Act which requires the court, in exercising that power, to seek to act in accordance with the dictates of justice. In doing so, the court must have regard to the provisions of ss 56 and 57 of the Act (importantly including the obligation to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings). The court may also have regard to any of the matters listed in s 58(2)(b) of the Act that are relevant to the application. The matters listed are:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
Mr Dawson, who appears with Ms Amato for the defendants, accepted that it would be relevant in the present application for the Court to have regard to the lateness of the application in accordance with (ii) set out above but submitted that the timing of the application is explained by the interlocutory processes and, in particular, the point at which the defendants received two key pieces of information.
[4]
Proposed amended defence
The defences pleaded in the defence filed on 9 December 2014 are defences of justification (to some imputations only), honest opinion and qualified privilege (pursuant to s 30 of the Defamation Act and at common law). By the proposed amended defence, the defendants seek to add a defence of contextual truth pursuant to s 26 of the Defamation Act.
The imputations specified by the plaintiff include an imputation that he gave the results of blood tests he conducted on Sydney Roosters football players to an organised crime figure. That is one of the imputations as to which there is no truth defence pleaded by the defendants. However, the proposed contextual truth defence specifies the following as a contextual imputation alleged to be substantially true:
That there are reasonable grounds to suspect that the plaintiff gave the results of blood tests he conducted on Sydney Roosters football players to an organised crime figure.
The matters complained of refer to a person by the description "organised crime figure". The person concerned has been named by the defendants in correspondence between the parties.
The defendants accept that they have known from the outset that the results of blood tests conducted by the plaintiff on Sydney Roosters football players were found on the phone of the alleged organised crime figure and that the phone had been seized by law enforcement officers. Indeed, those two pieces of information were a primary focus of the matters complained of. The two key later pieces of information identified as having prompted the present application are page 18 of the plaintiff's discovered documents and a note obtained on subpoena to the Football Club. The significance of each of those documents is explained below.
Page 18 of the plaintiff's discovery is a copy of an invoice from a pathologist to Nubodi Group Pty Ltd (marked for the attention of the plaintiff). The invoice revealed that, at the time the plaintiff was invoiced in respect of the blood tests he carried out on Sydney Roosters football players, he was also invoiced for blood tests carried out at about the same time on the alleged organised crime figure. As already noted, the defendants did not obtain a copy of that document until 9 July 2015. However they could, had they been more timely in their interlocutory activities, have obtained a copy of that document some two months earlier (the plaintiff having served his list of documents on time on 30 April 2015). The significance of the document is that it revealed for the first time that the alleged organised crime figure had a direct relationship with the plaintiff, evidently as a client of Nubodi. I accept that was a significant piece of information regarding the likelihood that it was the plaintiff who provided the test results to the alleged organised crime figure.
The note obtained on subpoena (exhibit 1) is a handwritten note evidently made by Dr Orchard, a doctor employed by the Club, of a meeting with representatives of the Australian Crime Commission on 19 July 2013. The note records:
ACC → suspicion of company who conducted test → illegally importing peptides.
As already noted, the defendants issued a subpoena to the Club on 30 July 2015 but documents were not produced until 4 September 2015. It must be noted, however, that the note does not specify the grounds of the suspicion recorded. The proposed contextual imputation is not that Mr Carolan was reasonably suspected by officers of the Australian Crime Commission of the conduct identified. In my view, the existence of the suspicion recorded (as at 19 July 2013) without any articulation of the grounds for the suspicion provides scant support for the proposed contextual imputation.
The proposed amended defence includes lengthy particulars which it is clear would expand the issues in the case considerably. The new particulars are sought to be relied upon to support not only the proposed contextual truth defence but also the existing defence of justification.
Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, identified both procedural and substantive reasons for opposing the amendment. As to procedural considerations, Mr Smark noted the Court's obligations reflected in the principles summarised above. He noted that the interlocutory steps in the proceedings were completed some five months before the allocated hearing date. Mr Smark also invoked the principle of proportionality, noting the breadth of the issues identified in the new particulars and the fact that those new particulars are also sought to be relied upon in support of the original justification defence (and accordingly present a substantial amendment to that defence as well).
As to matters going to the substance of the proposed defence, Mr Smark contended that the defence is weak in four respects:
1. The proposed contextual imputation is not capable of arising at all from any of the matters complained of.
2. It is not capable of arising "in addition to" the imputations pleaded in respect of the first and third matters complained of (each of which includes an imputation of guilt of the act identified).
3. The sting of the proposed contextual imputation is so weak that it is not capable of having the statutory effect ("the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations").
4. The particulars pleaded in support of the defence are "lamentable" both in terms of their lack of specificity and their capacity rationally to prove the contextual imputation.
Mr Smark emphasised that the objection to the proposed amendment was founded on the combined effect of all of those contentions.
As to the procedural point, Mr Dawson submitted that the worst that could be said against the defendants is that they delayed by eight weeks in obtaining copies of the discovered documents. He submitted that the plaintiff was attempting to exclude "what might be a complete defence" for eight weeks delay. I do not think that is a fair characterisation of the circumstances in which the application is brought. Following the delay of eight weeks in inspecting the discovered documents, a further two months passed before the application was brought. As the history recited above reveals, the proceedings came before the Court twice in that intervening period for the determination of interlocutory applications. In my view, the direct relationship between the plaintiff and the alleged organised crime figure was the important piece of new information. As already explained, I do not think Dr Orchard's note logically took the matter much further (having regard to the terms of the contextual imputation).
Mr Dawson submitted that there is no evidence that the plaintiff faces any actual prejudice in meeting the new allegations. I would respectfully suggest that submission reflects a degree of misconception as to the proper approach. In defamation proceedings brought by an individual against a major media defendant, an amendment to the defence one month before the hearing date (four months after the matter was listed for hearing) is not there for the asking nor is there any onus of proof on the plaintiff to establish an absence of prejudice. The prejudice is manifest. If the amendment is allowed, the plaintiff's lawyers will have to do additional work and focus on new issues. They will have to revisit their assessment of the merits of his claim (their assessment may not change, but they will have to do more work to revisit it). The fact that the plaintiff is an individual and his opponent a media defendant is relevant in that context.
Turning to the points going to the substance of the proposed defence, the first issue is whether the proposed contextual imputation is capable of arising. The defence is pleaded as to each of the four matters complained of. The first matter complained of is a composite of four articles, three of which are the second, third and fourth matters complained of. The first matter complained of includes an additional article not sued on separately.
Taking the argument at its highest in favour of the defendants, it is appropriate to consider the capacity of the first matter complained of to convey the imputation. The passages relied upon as conveying the imputation are identified in a schedule to the proposed amended defence. I have given careful consideration to the whole of the first matter complained of and, in particular, those passages. In my view, the first matter complained of is barely capable of conveying the contextual imputation. As submitted by Mr Smark, carriage of a "reasonable grounds to suspect" imputation is not inherently comprehended within carriage of a "guilt" imputation. They are separate attributions which focus on different things. The latter asserts a conclusion; the former makes an assertion about the evidence to support the conclusion. Importantly, a "reasonable grounds to suspect" imputation is not, as a matter of fact or logic, conveyed because an article carries the guilt imputation only faintly. What is required for a "reasonable grounds to suspect" imputation is some focus, in the matter complained of, on the existence of grounds which the article states or suggests point to the existence of a reasonable suspicion.
It was submitted on behalf of the defendants that the additional article included in the first matter complained of but not separately sued on is important in this context, since it poses "unanswered questions". I have given careful consideration to the passages of that article referred to (including an additional paragraph noted in correspondence, para 73). In my view, the first matter complained of is unlikely to be understood to convey the defendants' proposed contextual imputation. It is not a discussion of the evidence or the strength of the case for pointing to Mr Carolan as the likely culprit. That is a likelihood inherent in the matters reported in the articles, but the articles do not discuss that likelihood as a thesis for which there are reasonable grounds.
The recognition that the imputation is "barely capable" of arising is a recognition that, had this issue arisen at an earlier point, the appropriate ruling would have been to allow it to go to the jury. However, the apparent weakness of the defence is a relevant consideration at this stage.
As to the second and third issues raised by Mr Smark, I would accept, as submitted by Mr Dawson, that those are issues ordinarily more appropriately determined at trial. However, something should be said about the third issue (whether the contextual imputation is capable of having the statutory effect, even taking the defendants' case at its highest - that is, comparing the contextual imputation with the weakest single imputation pleaded by the plaintiff). I think there is some force in Mr Smark's submission that the contextual defence is weak by that test. That would probably not have been a sufficient ground for striking it out had it been pleaded in a timely way but it is a relevant consideration on the present application.
Finally, turning to the fourth point, I think there is force in the plaintiff's submission as to the specificity of the particulars pleaded in support of the defence and their capacity to prove the defence. Mr Dawson invoked the familiar argument that particulars are "topics", a reference to the remarks of Hodgson JA in Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376 at [20]; Santow and Tobias JJA agreeing at [23] and [24] respectively. His Honour said:
For my part I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate.
Those remarks were directed to the care with which the court should approach an argument that particulars of justification are not capable of proving the substantial truth of an imputation. I do not understand his Honour to have been saying that particulars may be stated with the generality of a topic. Particulars are intended to identify with precision the case a party has to meet; although they do not indicate the outer limits of what may be proved, they must be stated with adequate specificity to the end of stating a party's case.
The new particulars in the present case reveal that, under the banner of the contextual truth defence, the defendants seek to mount a broad attack on the plaintiff by reference to people with whom he is said to associate; his past (going back as far as an incident involving a race-horse in 2006); suspicions held by others as to other misconduct not apparently related to the sending of the blood tests and an earlier police investigation about which the defendants have known since before the original defence was filed. All this a month before the hearing.
I have reached the conclusion that it would be inimical to the dictates of justice to allow the amendment at this stage. The defence is not unarguable but, in my assessment, it is unlikely to succeed. In my assessment, it threatens to infringe the principle of proportionality. As noted during argument, some of the new particulars are relevant to the existing comment defence. The defendants should not be precluded from relying on those particulars for that purpose. In my view, however, leave to amend so as to plead the proposed contextual truth defence should be refused.
[5]
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Decision last updated: 24 September 2015