Hall v Hannaford

DLJ: 3 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20590 of 1995

JUDGMENT (Justification - adequacy of particulars - contextual truth ( s 16 ) non-availability of plaintiff's imputations " complained of " therefor - comment - sufficiency of particulars) 1 A question has arisen as to the adequacy of particulars of justification. 2 The first imputation justified is 2(a): "(a) The plaintiff refused to co-operate with his employers (as he was obliged to do so) because be would not supply particulars of his complaints concerning the Victims Compensation Tribunal". 3 The particulars hitherto provided are as follows: "(a) Every employee, including, in particular, state public servants, has a legal and moral obligation to supply information relating to his employment when lawfully requested by his employer. (aa) Insofar as it is a legal obligation the obligation referred to in the preceding paragraph is implied by law as part of an employee's contract of employment and is a necessary incident of an employee's fiduciary relationship with his employer. (ab) The defendant relies on the Attorney-General's Code of Conduct which has been discovered. (b) Every employee, including, in particular, state public servants, has a legal and moral obligation to substantiate serious allegations made by him relating to his employment if requested by his employer. (c) The plaintiff was employed from May 1993 as a casual clerk in the office of the New South Wales Crown Solicitor. (d) The plaintiff in a written report which he prepared in September 1993 and circulated, amongst others, to the New South Wales Opposition made a number of serious allegations concerning the Victims Compensation Tribunal, the manner in which it operated, and the decisions which it had made. (e) On 22 November 1993 John Withington, the Acting Crown Solicitor, requested the plaintiff to supply further details of his allegations. (f) By letter dated 22 November 1993 the plaintiff refused to supply the information requested by Mr Withington". 4 Additional Particulars: "The request was made orally by Mr Withington in a conversation with the plaintiff and is referred to by the plaintiff in his letter of 23 November 1993". 5 Further Particular: "The request was made orally and is set out in Mr Withington's note of 20 June 1994 (which has been discovered and which the plaintiff countersigned to indicate it was accurate)". "(g) On 20 June 1994 the plaintiff was again requested to provide the information in his possession in relation to the Victims Compensation Tribunal so that it could be investigated. (h) The plaintiff refused to comply with the request set forth in the next preceding sub-paragraph. (i) The refusal set forth in (f) and (h) were breaches of the plaintiff's obligation as an employee. 6 It is submitted for the plaintiff that these particulars generally amount to "tendentious rhetoric" (see Assaf v Skalkos (Levine J, 15 December 1997, unreported at 5) and are argumentative (Assaf v SKalkos (Levine J, 28 January 1998, unreported at 6). 7 There ever seems to be the need to remind parties to litigation in the Defamation List that particulars of justification should be proper responses to a request for the "facts, matter and circumstances upon which the defendant relies in support of the truth of the imputation," that is, its sting or substance. A defendant must specify those facts, matters and circumstances and is perfectly free to specify any conclusions or assertions to be drawn from or which will be made upon the proof of those facts, matters and circumstances. Without the underlying facts, matters and circumstances having been particularised a complaint as to tendentious rhetoric (or bland banality) may legitimately be made. 8 Further it is no answer for a defendant to assert that a plaintiff "knows" by reason of information in the plaintiff's possession or by reason of documents the plaintiff might have and of which discovery has been given. It is not what the plaintiff knows but the case that the defendant proposes to present that is the essence of particulars. 9 What the plaintiff might know might be relevant to any question of prejudice that may arise in circumstances of late amendment or insufficient particularisation of the case the defendant is otherwise going to make. The defendant is not relieved of the obligation properly to particularise a defence of justification merely because it is asserts that most of the information, if not all, of it happens to be in any event in the knowledge of the plaintiff. 10 In respect of the particulars originally supplied and supplemented obviously reference has been made to various documents. These should be the subject, at least, of informal discovery if not of the filing of a proper affidavit. Legitimate complaint can be made on the part of the plaintiff in relation to the apparent inconsistencies of dates as to the request namely 22 November 1993 and 20 June 1994. If requests were made on two occasions particulars should be provided of the date and the manner of making the request. If the latter is a document it should be identified clearly and reference made to any particular part of it said to constitute the request. Similar particulars should be given in relation to any alleged refusal of the request and clearly discovery of those documents should be given. 11 It is clear that what the plaintiff is seeking to have exposed by the defendant as his case, is the foundation for the existence of the obligations relating to non-disclosure and compliance with the requests by superiors. These may presumably arise at common law or by reason of there being in place a particular contract of employment, statutory provisions relating to the employment of the plaintiff and the like. The plaintiff is entitled to have identified the statutory or similar material especially and any parts thereof upon which particular reliance will be made as either establishing as a matter of fact the existence of the obligations or from which it can be argued that the existence of the obligations can rationally be inferred. The same applies to the obligation to comply with any request from superiors. The particulars hitherto supplied are fairly general in their nature: if that is the best the defendant can do, the plaintiff is no doubt advantaged. However where there are facts, matters and circumstances constituted by material establishing the specific obligations or specific duties, the defendant should not only particularise them but give discovery of relevant documents. 12 In relation to additional particular concerning the "oral" request, the plaintiff is entitled to have particularised what the defendant asserts to be the terms of that oral request; that is particulars of that part of the conversation which the defendant will no doubt prove by calling the relevant party to the conversation. It may well be, but I don't know, but what was said was "Would you please provide further details of your allegations?" The defendant, if he can, should further particularise this aspect. 13 As to the plaintiff's submission that a particular cannot be constituted by a construction put on a document, that is not without substance. If the document is said to constitute a refusal then the document must be identified, the passage relied upon must also be identified. The defendant is still free to argue that the particular document and relevant passages constitute a refusal. That is a matter for the trial. 14 On reviewing the particulars supplied hitherto in relation to imputation 2(a) it seems to me that the conduct of the litigation has been disadvantaged by there not having been formal discovery and the situation has arisen, in view of the desirability of the early fixing of the hearing date, that such an order should be made. 15 Imputation 2(b): "the plaintiff knowingly breached public sector standards of behaviour by disclosing information concerning the administration of the Victims Compensation Tribunal". 16 The particulars supplied hitherto are: "(a) All employees have an obligation not to disclose confidential information of their employer". 17 Pausing here, as I understand it, the defendant's case rests upon the plaintiff working as a solicitor's clerk, that is, in the employ of the State Crown Solicitor and was dealing with information concerning a client of the State Crown Solicitor namely, the Victims Compensation Tribunal. The observations I have made as to the requirements in the defendant properly to particularise an allegation of this kind apply with equal force here. "(b) The information referred to above was confidential and in disclosing it the plaintiff breached public sector standards of behaviour". 18 The defendant relies, as I understand it, on the particulars purported to have been provided in (aa) and (ab). The requirement for elaboration is clear; I have already remarked upon it. 19 The particulars hitherto provided are very general in their nature and can be regarded as unhelpful in informing the plaintiff as to what precisely the defendant's case is in relation to this imputation. 20 Imputation 2(c): "the plaintiff is irresponsible". (See my judgment delivered in this matter on 30 October 1996 at 7: this imputation is also to be found in the same form as imputations 4(b), 4A(c)). 21 If the defendant is relying upon all the matters properly particularised in support of the preceding imputations to argue that the sting of this imputation is available as a rational inference and conclusion then it should simply state that to be the fact. 22 Imputation 4(a): "the plaintiff deliberately adopted a pseudonym, "Mr James" to cause some embarrassment to the real Mr James". This imputation has not been justified. 23 Imputation 4A(a): "the plaintiff refused to cooperate with his employers (as he was obliged so to do) because he would not supply particulars of his complaints concerning the Victims Compensation Tribunal". 24 As I understand it, the defendant relies again on the matters otherwise hitherto particularised and which should be amplified in accordance with these reasons. The defendant has said "see above"; it is desirable however that the defendant says "the defendant repeats the following particulars" and identifies them. 25 Imputation 6(a): "the plaintiff held himself out as a 'whistleblower' when he was a person without any credibility". 26 The particulars provided are as follows: "(a) the plaintiff referred to himself as a whistleblower. (b) the allegations made by the plaintiff were baseless. (c) people who make baseless allegations lack credibility. (d) the reason set forth in the plaintiff's letter of 22 November 1993 for his refusal to supply the information lacks credibility". 27 There is a further particular to this effect. The defendant apparently has identified a document (dated 28 September 1993) in which the plaintiff is "alleged" to have referred to a quote from Pastor Niemoller which, the defendant says, indicates the plaintiff regarded himself as a whistleblower. In relation to this purported additional particular (whatever it means), the plaintiff says this is "unhelpful and insulting". 28 Obviously the plaintiff can complain about the inadequacy of particular (a). The plaintiff is entitled to particulars of the facts, matters and circumstances identifying when, where, how and to whom the plaintiff identified himself as a "whistleblower". If the identification of the plaintiff as a whistleblower is asserted as a matter of inference then all the foundations for that inference should be particularised. 29 As to particular (b); the allegations there referred to should be particularised as should the basis in the usual way upon which it is asserted that those allegations were "baseless". 30 Particular (c) is probably the closest there is to tendentious rhetoric; it might also be a legitimate submission to be made founded upon properly particularised facts, matters and circumstances. I should leave it as a particular but it is there at the defendant's peril. 31 Presumably particular (d) refers to matters otherwise hitherto particularised. 32 Insofar as it asserted that the reason set forth in the plaintiff's letter (particulars whereof no doubt will have been or should properly be given and the letter discovered), lacks credibility, is a matter of submission. 33 As to the reference to Pastor Niemoller it was, not only during submissions, I must confess, but even upon consideration of the issue generally, meaningless to me. What Pastor Niemoller said is well known in relation to the self-imposed silence by reason of his not speaking out beforehand during the rise of the Nazi regime. Where in the scheme of things Pastor Niemoller's statement falls, I simply do not know. It does not however seem to me to be a matter that should thwart the conduct of the trial or constitute a matter of prejudice to the plaintiff. I will leave it to the defendant to "sort this out". 34 Imputation 6(b): "the plaintiff refused to cooperate with his employers as he was obliged to so do because he would not supply particulars of his complaints concerning the Victims Compensation Tribunal". 35 It is contended that no particulars at all have been supplied in relation to the justification of this imputation. 36 If that be the case, then the defendant is simply to provide particulars in proper form in accordance with these reasons in answer to a request as usually framed: specify the facts, matters and circumstances upon which the defendant relies in support of its assertion of the truth of this imputation. 37 In relation to the plea of justification under s 15 of the Defamation Act 1974 it would seem to me that the appropriate orders to be made are:

1. Within 14 days the defendant is to deliver a Verified List of Documents.

2. The defendant is to provide further and better particulars of its case in justification in accordance with these reasons. 38 The next matter that I understand to be the subject of complaint is what is said to be the inadequate particularisation of the defence of comment. I assume that there has been no provision of further particulars of this defence. 39 In Konstantinidis v Foreign Language Publications Pty Limited (Levine J, 8 August 1997, unreported) I referred to the requirements of the particulars of the defence of comment at 7-14. 40 It is clear that a plaintiff in this case is entitled to have identified the "facts stated in the matter complained of" upon which it is said the comment was based. 41 The quality of those "facts" stated in the matter complained of (being the material for comment) which makes that material "proper", is that they are "truly stated". 42 In Konstantinidis I referred to the judgment of Hunt J in Sims v Wran (1984) 1 NSWLR 317 and his Honour's statement at 325F that particulars of the facts and matters upon which the defendant relies to establish the truth of the factual basis for the comment can be ordered if not voluntarily supplied. This seems to be an appropriate case to make such an order. 43 The remaining matter that appears to be in dispute is the defence of contextual truth set out in paragraph 8 of the Defence to the Amended Statement of Claim which was filed in Court on 4 April 1997. That defence is in the following terms: "8(a) each of the imputations pleaded by the plaintiff which is not found to be a matter of substantial truth was published contextually to each other of the imputations pleaded by the plaintiff; (b) each imputation pleaded by the plaintiff related to matters of public interest or, in the alternative, was published under qualified privilege; (c) by reason of the substantial truth of the plaintiff's imputations as are found to be matters of substantial truth, publication of such of the plaintiff's imputations as are found to be matter f substantial truth do not further injure the reputation of the plaintiff". 44 It is contended by the plaintiff that this does not plead an available defence under s 16 of the Defamation Act 1974 (contextual imputations) because it "pleads back" the plaintiff's imputations. 45 It seems to me that this submission is well founded. The structure of the defence provided for by s 16 has been considered by the Court of Appeal in Perkins v Harris (26 May 1995); Waterhouse & Anor v Hickie (26 May 1995) (1995) Aust Torts Reports 81-347; and, TCN Channel Pty Limited v Antoniadis (1998) 44 NSWLR 682. I considered the matter in Hall & Anor v Nationwide News Pty Limited (5 November 1998, unreported (DLJ: 2)). 46 Contextual imputations are imputations not pleaded by the plaintiff. They are imputations that are not "imputation(s) complained of" by the plaintiff. They are "other" imputations. 47 Section 15 provides the defence of truth in relation to imputations "complained of" by the plaintiff. Section 16 provides a defence whereby a defendant can plead "other" imputations than those "complained of" by the plaintiff which arise at the same time and in addition to those "complained of" by the plaintiff and provided they differ in substance from those pleaded by the plaintiff. 48 Where a defendant justifies some but not all of the imputations "complained of" by the plaintiff (that is, justifies pursuant to s 15) I do not see any statutory basis for the use by the defendant of "unjustified" imputations "complained of" by the plaintiff as "contextual imputations". It might be considered that this position is heretical and contrary to the observations of Hunt J in Allen v John Fairfax & Sons Pty Limited (2 December 1988, unreported) expressly said to be correct by Priestley JA in Perkins v Harris at 9-10. 49 In the absence of any "other" imputations being relied by the defendant strictly in accordance with s 16 as contextual imputations, the defendant can still plead truth to the plaintiff's "complained of" imputations or some of them and as to the balance in respect of which there is no plea of justification pursuant to s 15, rely upon the truth of the "complained of" imputations in mitigation of damages. In other words, the ultimate objective sought to be attained by the use of s 16 can be attained in mitigation of damages when the only defence is in fact a defence under s 15. It is open to the defendant to argue that by reason of the truth being established of imputations 1, 2 and 3 the damages to the plaintiff's reputation in respect of the unproved imputation 4 and 5 is zero. No damage to the plaintiff's reputation has in fact been proved by reason of the truth of imputations 1, 2 and 3 and indeed the case is such that any presumption of damage arising from unproved imputations 3 and 4 has been rebutted. 50 I strike out paragraph 8 of the Defence to the Amended Statement of Claim. 51 It seems to me that the plaintiff has succeeded substantially in this application and is entitled to an order for costs. 52 The formal orders are:

Within 14 days of today the defendant is to deliver a Verified List of Documents.

Within 14 days, the defendant is to provide further and better particulars of his defence of justification pursuant to s 15 of the Defamation Act 1974 in accordance with these reasons.

Within 14 days, the defendant is to provide further and better particulars of his defence of comment including particulars of the facts, matters and circumstances in support of the " truly stated facts " relied upon as proper material for comment.

Paragraph 8 of the Defence to the Amended Statement of Claim is struck out.

The defendant is to pay the plaintiff's costs of 30 April 1999, 14 May 1999 and 23 June 1999.

Liberty to restore to the Defamation List on 7 days notice. ***********

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