Defamation - Publication - Generally - Identification - Plaintiff not named - Self-identification - Before publication.

Scelfo v Rutgers University 282 A 2d 445 (1971), considered.

Judgment Number: [2004] TASSC 147

(Edited Version of Reasons Delivered Orally) 7 December 2004

1 This is an appeal by a plaintiff from an order of the Master made on 13 October 2004 by which the defendants were granted leave to amend their defences. The order permitted a number of amendments to be made to each defence. The plaintiff concedes that most of those amendments were rightly allowed. However he contends that the learned Master should not have permitted the amendment of par10 of the defence of the first defendant, nor permitted the amendment of par10 of the defence of the second and third defendants.

2 In this action the plaintiff is claiming damages for defamation. His case is that he was responsible for a website. In fact the first two paragraphs of his statement of claim read as follows:

"1 At all material times the plaintiff was and is the owner, publisher and designer of an Internet website called Discover Tasmania (hereinafter referred to as the website) which is published at the Internet address of http://www.discover-Tasmania.com

1.1 At all material times the plaintiff has created the content on the website and has been solely responsibility [sic] for all the content that is published on the website."

3 The plaintiff contends that defamatory comments concerning his website were published by each of the defendants. He contends that, although he was not named by any of the defendants, the published material was defamatory of him.

4 One of the defences that each of the defendants is now raising is a defence of self-identification. The defendants rely on an American case, Scelfo v Rutgers University 282 A 2d 445 (1971). That case concerns a publication in a undergraduate newspaper of photographs of two mounted policemen. The photographs were accompanied by a headline that included the words "Cops, Rightists: Racist Pig Bastards". The two officers were unidentifiable in the published photos but they showed the publication to other people, identified themselves as the photographed officers, and sued for defamation. One of the defendants obtained an order for summary judgment on the basis that the plaintiffs were not identified in the publication and thus were not defamed by the publication of the published material.

5 The topic of self-identification is also dealt with in Gatley on Libel and Slander, 10th edn, at par6.12, where the learned authors say:

"As a general rule if A writes a letter to B defaming B, which is no publication, and B shows this to C, there is no publication for which A is responsible, for the publication is B's own act. Wilcox v Moon 24 A 244 (Vt, 1892), Shepherd v Lampier 146 N Y Supp, 745 (1914)."

6 The plaintiff accepts that the defendants should be allowed to plead a self-identification defence on the basis of his alleged conduct after the publication of the material complained of. This appeal concerns an attempt to plead a self-identification defence on the basis that the plaintiff identified himself to three people as the person responsible for the website prior to the publication of the material complained of. The three people in question are apparently members of the plaintiff's family.

7 Paragraph 7 of the statement of claim reads as follows:

"The newspaper publication was published by the first, second and third defendants to the family of the plaintiff who at the time of the newspaper publication on 21 November 2002 knew the matters as set out at paragraphs 1 and 1.1 and by reason of that knowledge knew the newspaper publication was of and concerning the plaintiff."

Thereunder there appear particulars of the names and addresses of the three members of the plaintiff's family that are referred to.

8 In the defence of the first defendant as now amended, par10 and the particulars thereunder, read as follows:

"The first named defendant does not admit the allegations of fact contained in paragraph 7 of the statement of claim and in particular alleges that to the extent the newspaper publication was published of and concerning the plaintiff (which is denied) the plaintiff identified himself to the persons particularised in paragraph 7 of the statement of claim.

(a) That the family members named in paragraph 7 of the statement of claim became aware of the extrinsic facts set out at paragraphs 1 and 1.1 of the statement of claim by way of information obtained from the plaintiff before the publication of the defamatory material sued upon."

9 Although that paragraph in the particulars is labelled "(a)", it is the only paragraph appearing by way of particulars at par10. In the defence of the second and third named defendants as now amended, par10 is identical. In each case the non-admission is not new, but the allegation of self-identification and the particulars are new material introduced by the amendment allowed by the Master.

10 The plaintiff contends that the amendment to par10 of each defence would be futile because a self-identification defence based on pre-publication self-identification could not possibly succeed. He contends that the point is not even arguable. It is well established by authority that an amendment which is futile because of it being obviously bad in law should not be allowed: Commonwealth v Verwayen (1990) 170 CLR 394, per Dawson J at 456.

11 The plaintiff contends that the Scelfo principle cannot logically be applied to a situation where self-identification occurs before publication. On the contrary, he submits that there is authority that a publication that does not mention an individual can be defamatory of an individual as a result of extrinsic facts being known by persons to whom it is published. In that regard, he relied on the judgment of Hunt J in Abbott v TCN Channel 9 Pty Ltd (1987) Aust Torts Reports 80-138 at 69,079. There, Hunt J considered a hypothetical defamatory statement:

"The barrister appearing for the accused before Smith J yesterday was incompetent."

His Honour considered a number of different situations relating to extrinsic facts and knowledge of extrinsic facts. In relation to one of those situations, he said:

"The first situation is where, prior to the publication of the matter complained of, a statement that the plaintiff was to appear for the accused had been published. Such a publication is said to show the condition of the public mind: Van Ingen v Mail & Express Publishing Co (1898) 50 NE Rep 979 at pp 981, 982; cf Astaire v Campling (1966) 1 WLR 34 at p 39. It matters not by whom the earlier statement was published, nor that the fact so stated is itself erroneous. The plaintiff must establish in evidence the existence of the earlier statement and call a witness who read the matter complained of with knowledge of its existence. The extrinsic fact upon which the plaintiff relies is the statement that he was to appear for the accused, not the appearance itself. He will fail if all that he can prove is that the matter complained of was read by a reader who erroneously believed that such an earlier statement had been made."

12 The topic in question is dealt with by the learned authors of Gatley on Libel and Slander, 10th edn, in par7.3, where the following is said:

"Where the claimant is referred to in an indirect way or by implication it will be a question of degree how far evidence will be required to connect the libel with him. At one extreme, if there is a libel on the Prime Minister, that officer does not need to produce witnesses to testify that they knew who he is. At the other extreme, the claimant may only be identifiable by reason of extraneous facts which are not generally known, in which case there is no actionable publication unless it is shown that the words were communicated to persons with such knowledge. Even in the latter type of case however, it is not enough that the recipients of the statement did understand it to refer to the claimant. The issue is whether reasonable people with their knowledge would so understand it."

13 There is apparently no case law authority as to whether or not a self-identification defence can ever be available on the basis of self-identification occurring before publication. Initially I found it very difficult to understand how, as a matter of logic, it could be argued that a publication was not defamatory of a plaintiff because the plaintiff had, prior to the act of publication, given others information likely to lead to his identification.

14 The amended par10 does not state when the members of the family are alleged to have become aware of the relevant extrinsic facts. If the plaintiff informed them of those extrinsic facts at a time when he contemplated, or ought reasonably to have contemplated, extremely adverse publicity relating to his website, which eventuated in the form of the publications complained of, I think it could be argued that the Scelfo principle is applicable and a self-identification defence available. I leave open the question whether such an argument should succeed. I think that is a question for the trial judge. I think it is probably a question to be determined only after evidence has been given. Because I think that the point would be arguable in that situation, I reject the plaintiff's submission that the amendment would be futile, even though I found his submission very attractive and very forceful initially.

15 The plaintiff submitted that the amendments were made in bad faith. In support of that submission, he relied first of all on a letter written to him by the defendants' solicitors on 30 March 2004. His principal grievance in relation to that letter concerned a comment that the solicitors understood that he had had a conversation with the author of an article published in the second defendant's newspaper. They went on to give details of the alleged conversation. The plaintiff contends that the account of the alleged conversation appearing in the letter was a complete fabrication. I have no evidence to the effect that the solicitors, or any of the defendants, believed or suspected that the assertions as to that conversation were false in any respect. If the conversation did not take place, and if it is the product of malicious fabrication, it does not follow that any of the defendants or their solicitors knew the truth, or any part of the truth, in relation to the alleged conversation, its non-existence, or its contents.

16 Secondly, the plaintiff relies on something said in a letter from the defendants' solicitors to him dated 17 November 2004. The solicitors wrote:

"You resisted our client's application to have the issue of identification dealt with by way of separate trial. That resistance proved futile and a separate trial was ordered."

If that was an inaccurate account of past events, I do not think it follows that the solicitors or the defendants were acting in bad faith. In particular, it is significant that what they said was said only to the plaintiff who, having been present at the time that the question of a split trial was dealt with, would have known exactly what the truth was.

17 Thirdly, the plaintiff relied on a comment that he says the defendants' counsel made to the Master during the hearing on 13 October 2004. According to the plaintiff's affidavit, the defendants' counsel said:

"1 The defences dated the 1st of October 2004 do not seek to allege new or fresh defences.

2 There has never been a situation where the defendants have sought to plead additional defences to those pleaded in the very first instance."

The plaintiff contends that, by seeking to plead a defence based on pre-publication self-identification, the defendants were seeking to allege a new or fresh defence, and a defence that was not pleaded in the very first instance, so that counsel's comment was incorrect. The Master had before him the earlier versions of the pleadings. Even if counsel for the defendants said what he is alleged to have said, I do not think it follows that he was acting in bad faith. The Master was able to evaluate for himself whether the proposed new material was properly characterised as new, rather than a more detailed plea of what had been pleaded before. What had been pleaded before was that par7 of the statement of claim was bad in law. I do not think it follows, when counsel says something that does not stand scrutiny and turns out to be wrong, that counsel was necessarily trying to trick the judicial officer in question into acting on a false premise. I have no reason to think that counsel did not honestly believe that the Master could properly see things in the way that he suggested.

18 On that basis, I do not think that bad faith has been established by any of the evidence relied upon by the plaintiff. Certainly there are authorities to the effect that amendments should be refused if the party seeking to amend is acting in bad faith. In Cropper v Smith (1884) 26 Ch D 700, at 710, Bowen LJ said:

"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."

19 Bad faith was also adverted to by the High Court in Clough v Frog (1974) 48 ALJR 481 at 482, where their Honours said:

"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."

20 Bad faith has also been the subject of judicial comment in a couple of Northern Territory amendment cases. In Northern Territory Fuels Pty Ltd v Hart (1985) NTJ 1 at 13, O'Leary J apparently said that "good faith in seeking to amend pleadings is an essential condition for giving leave to amend". That remark was quoted with approval by Kearney J in Brooks v Wyatt [1994] NTSC 90; (1994) 99 NTR 12 at 20. That was a case in which a defendant attempted to introduce a new defence and a counterclaim when a trial had reached a stage where the trial judge had made findings adverse to that defendant and the case had been adjourned for the wording of final orders to be contemplated. Kearney J was not satisfied that the application to amend was made in good faith, and he rejected it.

21 But in this case I have no reason to think that the defendants, or any of them, acted in bad faith in seeking to plead pre-publication self-identification as a defence. It might be misconceived. There might be no evidence to support it. However I am not persuaded of a lack of belief that such a defence might possibly succeed, and there is no reason to think that any of them had any ulterior motive in seeking to plead that defence.

22 The plaintiff contends that the amendment will prejudice him. He says that as a result of the litigation, and of the amendments in particular, he has been experiencing feelings of intimidation, frustration, anxiety and distress. He has also made the point that the amendments have resulted in delay. All the matters that he complains of, regrettably, are everyday consequences of participation in litigation. I am not persuaded that the adverse effects of this litigation on him are out of the ordinary. He relied on a comment in Ketteman v Hansel Properties Ltd [1987] AC 189 at 220, where Lord Griffiths said:

"But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations. The anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other."

23 I accept that the matters referred to by his Lordship are relevant factors. I think they would be more significant when an application to amend is made at a very late stage, and where the application seeks to introduce a defence radically different from any previously pleaded. That was a case where it was sought to plead a limitation defence at an extremely late stage.

24 The general rule is that leave to amend will be given so long as that can be done without injustice to the opposite party: Cropper v Smith (supra); Clough v Frog (supra); Commonwealth v Verwayen (supra) at 456, 464, 485; Shannon v Le Chung [1912] HCA 52; (1912) 15 CLR 257 at 261. I have no reason to think that the plaintiff will have any difficulty in securing a fair trial as a result of the amendment. In the circumstances, I think that this is a case where the amendment should be allowed to stand.

25 In my view the learned Master was right in permitting the amendment. I therefore dismiss the appeal.

26 I order that the plaintiff pay the taxed costs of each defendant of and incidental to the appeal in any event. As a general rule, I think that the taxation of costs in relation to interlocutory procedure should be dealt with when an action is concluded, and not along the way, especially in a situation where there is possibly an inequality of resources. Since the appeal is one that was not lacking in merit, I will do what I would normally do in relation to an interlocutory procedure. That is why I have added the words "in any event".