Haines v Australian Broadcasting Corporation and Others No. 19417 of 1993 Defamation - Plaintiff's Amendment - Abuse of Process [1995] NSWSC 136 - NSWSC 1995 case summary

Haines v Australian Broadcasting Corporation and Others No. 19417 of 1993 Defamation - Plaintiff's Amendment - Abuse of Process [1995] NSWSC 136 - NSWSC 1995 case summary — Zoe

[15]

Nothing daunted, leave has now been sought to file another amended Statement of Claim. As the third defendant originally named has never filed an appearance, there can be no objection to the plaintiff's application to delete it as such. I will order that its name be deleted. The addition of Australian Film Finance Corporation Ltd (as the proposed third defendant has since become known) ((2) I shall refer to the proposed third defendant as "the AFFC".) depends upon whether the claims now sought to be pleaded against it are such that they would not have been struck out if they had been pleaded in the original pleading.((3) Horton v Jones (No 2) (1939) 39 SR 305 at 309-3 10; 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.) They would be struck out (and hence the amendment would not be permitted) in various situations - such as where the claim in manifestly groundless,((4) cf General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129.) or where the claim amounts to an abuse of process; and there are various manifestations of such abuse - for example: where the claim is being made for a purpose not within the scope of the process,((5) Grainger v Hill [1838] EngR 365; (1838) 4 Bing (NC) 212 at 221 [1838] EngR 365; (132 ER 769 at 773); Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35 at 91; Re Majory (1955) Ch 600 at 623; Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 489, 490, 503; Castanho v Brown and Root (UK) Ltd 119811 AC 557 at 567; Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 96, 98, 112; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 517, 530, 552-554.) and where multiple defamation proceedings based upon the same material have been brought against the same defendant where all could readily have been comprehended within the one action.((6) Williams v Hunt (1905) 1 KB 512 at 514; Thomson v Lambert (1938) 2 DLR 545 at 560; Meckiff v Simpson [1968] VicRp 7; (1968) VR 62 at 65; Maple v David Syme and Co Ltd (1975) 1 NSWLR 97 at 99.) The AFFC objected to the proposed amended Statement of Claim in part upon a slightly different manifestation of abuse of process, one which I shall describe once I have outlined the nature of the claims now made.

[18]

There are other defects. There was no description in the pleading of what was shown in the film and which was claimed to give rise to the false and misleading or deceptive representation upon which the new claims were based. Such must be pleaded where the visual images give rise to, or give support to, the claim made - be it defamation or otherwise.((12) Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410 at 415-416.) When an attempt was made on the day before the hearing to rectify that omission, the description was quite inadequate in that it failed to refer to material in the film which materially qualified the effect of that description.((13) Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd (1971) 1 NSWLR 472 at 477, 480; Gordon v Amalgamated Television Services Pty Ltd (at 414).) The pleading failed to give proper particulars by which the defendants could know the basis upon which each of them was sought to be made responsible for the specific publications identified in the pleading - a point of some considerable importance in this case, as the primary publisher was the ABC.((14) There are various ways in which - assuming it to have been the publisher of the film at an earlier time - the AFFC could be made liable for the re-publication of the film by the ABC; see, generally: Speight v Gosnay (1891) 60 LJQB 231 at 232; Ratcliffe v Evans (at 531, 533); Dempster v Coates (Court of Appeal, 11 April 1990, unreported) at 12; Slipper v BBC (1991) 1 QB 283 at 296. These cases are discussed in Williams v John Fairfax Group Pty Ltd (1991) A Def R s. 51,035 at 42,089-91. The AFFC is entitled

as is Mr Bennetts - to know precisely the basis upon which the plaintiff asserts that it and he are liable in this case.) The pleading also made a claim for misleading or deceptive conduct against Mr Bennetts based upon s 52 of the Trade Practices Act 1974, as a principal and not as an accessory,((15) cf s 75B.) ignoring the fact that s 52 is directed to corporations and not individuals.((16) The AFFC does not, of course, assert any interest in the claim made against Mr Bennetts, but it drew attention to the defect as yet another illustration of the indifference with which the plaintiff's pleading has been framed: cf Armitage v Double Bay Newspapers Pty Ltd (Hunt J, 26 September 1991, unreported) at 4.)

[47]

In the present case, the imprecise terms in which the imputation considered by Levine J was cast provided a problem, by the introduction of the phrase that the plaintiff was "the type of person" who consented, but the judge gave consideration to the imputation without those words so that there was a sufficiently identical coincidence between the imputation held by Levine J to be incapable of being conveyed by the film and the representation upon which reliance was sought to be placed in the pleading which I was asked to consider. There is no doubt that it was an issue which was necessarily determined, and one of fundamental importance to the plaintiff's case. It was an issue of law determined by way of a separate trial with the consent of the parties((56) Pt 31 r 2) and, from the judgment given by the judge, it was properly argued in the sense in which I have discussed that term. A direct appeal lay from that decision to the Court of Appeal by leave only,((57) Supreme Court Act 1970, s 103) but a party may always argue on an appeal as of right from the judgment in the action as a whole that the decision in the separate trial was wrong.((58) Pt 51 r 15; David Syme and Co Ltd v Lloyd (1984) 3 NSWLR 346 at 349, 358, 359.) To preserve such a right of appeal, however, the unsuccessful party must leave the imputation in his pleading.((59) Anderson v Mirror Newspaper Ltd (No1)(1986) 6 NSWLR 99 at 111-112.) Here, the plaintiff abandoned his claim that such an imputation arose, and in ordinary circumstances must be taken to have abandoned any wish to appeal. The decision of Levine J was, moreover, clearly right. The most which was conveyed by the film was that the plaintiff knew that he was being filmed posing naked (but from the back only) while Donald Friend painted his portrait. Whether the conclusion was capable of going further was the subject of some debate before me, and I shall refer to that issue later. In no way, however, could it be concluded that the plaintiff knew that it was being recorded for subsequent telecasting to a wide viewing audience as the imputation asserted. This was expressly conceded by Mr Evatt during the argument before me.

[49]

The second submission made by the AFFC was that the plaintiff was by now out of time in bringing his claims for misleading or deceptive conduct in June 1990 and August 1991. Both s 82(2) of the Trade Practices Act and its NSW equivalent s 68(2) of the Fair Trading Act 1987 - require any action for loss or damage suffered by such conduct to be brought within three years after the date on which the cause of action occurred. It was submitted that, as loss or damage includes damage to reputation,((60) Brabazon v Western MO Ltd (1985) 58 AIR 712 at 719-720 (Toohey J). in Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 523-525, Wilcox J appears to have treated damage to reputation as no more than a consequential loss.) the cause of action was complete upon the publication of the representation by the ABC, and thus the plaintiff is already out of time and his claim is manifestly groundless. That does not, however, appear to be the basis upon which the plaintiff seeks to make out his case. Mr Evatt has, as I noted earlier, conceded that the programme is not defamatory of the plaintiff, and it seems that the plaintiff will assert that his cause of action here was complete only when he suffered actual financial loss. There is nothing before me to say when that was. In any event, it is undesirable that limitation questions of this kind should be decided in interlocutory proceedings such as these in advance of the action, except in the clearest of cases.((61) Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533.) This is not such a case, at least not at this stage without any sufficiently precise indication from the plaintiff as to how his case will in fact be put.((62) The particulars most recently supplied do not identify any dates of the actual payments alleged to have been made by the plaintiff as a consequence of the publication of the false representation.) I am not prepared to refuse leave to amend upon the basis of this submission.

[65]

I should record the particular basis upon which I have concluded that it is open to the jury to find that the plaintiff knew that he was being filmed whilst posing naked for Donald Friend to paint his portrait. The plaintiff's case - as revealed in the particulars and as enlarged during the argument - is that, at the time when he posed for Donald Friend, he was studying to be an accountant but was working as a waiter. He was asked by someone whom he believes was Mr Bennetts (or someone on his behalf) to act as an artist's model for Donald Friend, not by Mr Friend himself. He did not see a camera, which he says must have been concealed, and in fact he had no knowledge that he was being filmed. The film itself, however, suggests clearly that the position was otherwise

whatever may be the truth of the matter. The camera is not in a static position throughout. It shows both the plaintiff and Donald Friend from different angles, suggesting that - at least when Donald Friend was being filmed - the camera must have been close to and clearly visible to the plaintiff. There is one particular shot of the plaintiff where the camera is close to and somewhat beneath the plaintiff's outstretched arm. From the upwards angle of this shot, it would appear to be physically impossible, whatever type of lens was used, for the camera to have been more than a few feet away from the plaintiff. ((77) There is another shot taken of Donald Friend from behind and between the outstretched arm and the body of a male artist's model who may have been the plaintiff (his head is out of frame). The model is seated facing Donald Friend (who is painting him), with a cloth draped around his waist. The portrait shown as being painted by Donald Friend at this time is different to that earlier shown as being painted of the plaintiff, although the face on this portrait is not dissimilar to the plaintiff's face.) No doubt the plaintiff will produce some explanation as to how - despite all of this he nevertheless had no knowledge that he was being filmed, but the ordinary reasonable viewer would not have known of any such explanation.

Haines v Australian Broadcasting Corporation and Others No. 19417 of 1993 Defamation - Plaintiff's Amendment - Abuse of Process [1995] NSWSC 136

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Judgment (73 paragraphs)

Haines v Australian Broadcasting Corporation and Others No. 19417 of 1993 Defamation - Plaintiff's Amendment - Abuse of Process [1995] NSWSC 136 (6 November 1995)

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Legislation Cited (6)

Cases Cited (32)