Fierravanti-Wells v Nationwide News Pty Ltd

EX tEMPORE Judgment 1Before the Court are two notices of motion filed by defendants in two related defamation proceedings. The first notice of motion relates to proceedings number 2010/130103 where News Digital Media Pty Limited, a subsidiary of News Corporation Group, is listed as the first defendant. The second notice of motion relates to proceedings number 2010/85259 upon which Nationwide News Pty Ltd is listed as the first defendant. Both first defendants are related corporations within the meaning of the Corporations Act 2001 (Cth). The Court's reference to "defendants" is a reference to a particular defendant in the two sets of proceedings. 2The publications about which complaint is made have substantially of the same content. One of them is a print publication in the Daily Telegraph and the other is an Internet publication. The publications, in so far as they dealt with the plaintiff, are part of a larger publication, that is, an article in this case dealing with a number of politicians and making statements as to the appropriateness, or otherwise, of overseas trips. 3The defendants seek the Court's leave to amend the substantive defence in the proceedings to plead truth and contextual truth. 4The substantive defamation proceedings allege two imputations. The first that the plaintiff, who is a member of the Senate in the Australian Parliament, rorted a state tour abroad. The second, that the plaintiffs "so called trip to Italy was a farce". 5The defence currently raises qualified privilege and comment under the common law and; qualified privilege and honest opinion; under sections 30 and 31, respectively, of the Defamation Act 2005. 6On one view, truth is always an issue in defamation proceedings but there is no need for a plaintiff to prove, that a defamatory imputation is untrue. 7In this case, given that the current defence raises comment, it would be necessary to prove at least the truth of the facts upon which the comment is based. That, of course, is a matter for which the defendants bear the onus of proof and the burden. Once a defendant, on the other hand, pleads truth, contextual or otherwise, it is for the defendant to prove the truth of the imputation. If witnesses were available to the defendant on the issue and not called, presumably the inference would be drawn against the defendant. 8What is before the Court relates to an amendment alleging truth, the defendants, who seek the amendment, say the amendment does not substantially alter, that which would be the subject of evidence in the proceedings. 9The particulars and the statements that are said to be true are, in large part, uncontroversial. They go to the Italian heritage of the plaintiff, the fact she has a property in Umbria and the fact she is a Senator. 10The contentious issues relate to matters that, with one exception, would be dealt with in the evidence as the pleadings now stand. Those matters are the activities of the plaintiff in purchasing Italian clothing whilst in Italy, dining with the Ambassador, the effect of contents of the report and whether the source of the report is available in Australia. 11One exception, and it goes to the essence of the defence that is sought to be pleaded, is particular (k) in the Particulars. That relates to chapter 7 of the report and the lack of substance in any observations and anecdotal material that was available to the plaintiff. Further, Particular (k) alleges that the report could have been prepared without the plaintiff undertaking travel to Italy and the trip would not have impacted the quality or content of the report. 12The qualifying words "materially" and "quality of content" of the report leave open a vast area of debate. 13The plaintiff says that the effect of alleging truth and particularising it in the manner in which it has been particularised, requires the plaintiff to call evidence from persons with whom the plaintiff met in Italy, the substance of the conversations that occurred and the effect of those conversations on the conclusions reached and the nature and content of the report. 14The Court acknowledges the plaintiff's position in this regard. The substantial issue between the parties is one that relates to the issue of comment and qualified privilege rather than the issue of truth. Having said that, it is necessary for me to allow, subject to the provisions of the Civil Procedure Act 2005 (hereinafter, "the Act"), the defendants to plead their case in the way they seek. However, it is the terms of the Act that will dictate the Court's approach. 15Section 56 of the Act mandates that the Court and parties to a civil dispute or civil proceedings must facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. It has been held on a number of occasions that the real issues in the dispute are those issues that are defined in the pleadings. 16As a consequence of this and other duties, it is also necessary, to the extent possible and subject to the other provisions of the Act, to facilitate pleadings which adequately and appropriately reflect that which is in issue, and truly in issue, between the parties. That which is 'just' may have had different connotations over time. The age-old expression, "Justice delayed is Justice denied" is now given voice by the provisions relating to case management that are contained in the Act. 17Section 58 of the Act makes clear that, in deciding whether to make an order, such as an order to allow an amendment to pleadings, the Court must seek to act in accordance with the dictates of justice. In so doing, the Court must have regard to the provisions of s 56, which require a balance between case management on the one hand and justice on the other. 18Section 64 of the Act enables the Court to order that any document in the proceedings be amended or to grant leave to amend a document. However, s 64 requires that, subject to the provisions of s 58, the Court can only make such an order if the amendments are for the purpose of determining the real issues raised by, or otherwise dependent on, the proceedings. 19A party is entitled to prepare and present its case in the way it thinks fit ( J L Holdings Pty Limited v State of Queensland (1998) 85 FCR 1, per Kiefel J. However, as has been explained and summarised on a number of occasions, the opportunity to prepare and to present a case properly does not include the requirement that the Court ensure that a party uses the opportunities that may be granted to it: Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597. 20The defendants are entitled to plead the case in the way they wish, regardless of the view of the Court as to which is the best of the defences available to it. However, that which the defendants wish to plead is based upon material that was available to them before March this year, yet they wait until two weeks before a jury trial is due to commence to seek to amend their pleadings to plead the truth of the allegations or imputations that are alleged. 21The defendants have, well before this time, had the opportunity to prepare and to present the case they wish. They have chosen to seek to amend their defence at a time that would prejudice the plaintiff, in a manner that an order for costs would not compensate. As a result of the amendment, the plaintiff may be required to call evidence in relation to the truth of the allegations. 22The defendants say that any such prejudice can be cured by costs. However, as stated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, at [67], not all prejudice caused by delay can be cured by costs. 23The amendment of the proceedings will involve a vacation of the dates currently listed before a jury for two weeks commencing on 7 November 2011. 24Costs are not an appropriate or adequate remedy for the prejudice associated with that delay. The application to amend has been made too late. 25The Court makes the following orders: