Keramaniakis v Wagstaff

Keramaniakis v Wagstaff - [2005] NSWDC 14 - NSWDC 2005 case summary — Zoe

Gordon v Amalgamated Television Service Pty Ltd [1980] 2 NSWLR 410 Grappelli Derek Block (Holdings) Ltd [1981] 1 WLR 822; [1981] 2 All ER 272 Baltinos v Foreign Language Publications Pty Ltd [1986] 6 NSWLR 85 Hayward v Thompson [1982] QB 47; [1981] 3 All ER 450 Grey v David Syme (1992) 106 FLR 103 Blackburn v The State of New South Wales (NSW Supreme Court, Hunt J, 31 January 1991) Toomey v Mirror Newspapers (1985) 1 NSWLR 173 State of Queensland v J L Holdings Pty Ltd (1996) 189 CLR 146 Clough & Rogers v Frog (1974) 4 ALR 615; (1974) 48 ALJR 481 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Australian Building Industries Pty Ltd v Stramit BC9706333 (Federal Court of Australia, Northrop, Lindgren and Lehane JJ, 1 December 1997). Burrows v Knightley and Nationwide News Pty Ltd (1987) 10 NSWLR 651 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Abbott v TCN Channel Nine (NSW Supreme Court, Hunt J, 6 October 1987) Grappelli v Block (Holdings) Ltd [1981] 1 WLR 822, 825, 831; [1981] All ER 272, 274, 279 Toomey v Mirror Newspapers (1985) 1 NSWLR 173, 182-183 Sims v Wran [1984] 1 NSWLR 317 Harris v 718932 Pty Ltd [2003] 56 NSWLR 276 Ainsworth v Burden (2003) 56 NSWLR 620 State Bank of New South Wales Ltd v Currabubula Holdings Pty Limited [2001] NSWCA 47 CASES CITED: Timms v Clift [1998] 2 Qd R 100; BC9701026 Cutler v McPhail [1962] 2 QB 292 David Syme & Co Ltd v Grey (1992) 38 FCR 303 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Dow Jones & Co v Gutnick (2002) 210 CLR 575 Collins Stewart Ltd & Anor v The Financial Times [2005] EWHC 262 (QB) (25 Feb 2005) Valentine v Eid (1992) 27 NSWLR 615 Proctor v Jetway Aviation [1984] 1 NSWLR 166 McGee v Yeomans [1977] 1 NSWLR 273 Viro v The Queen (1976-1978) 141 CLR 80 Trident General Insurance Co Limited v McNiece Brothers Pty Limited (1988) 165 CLR 107 Binskin v Kangaroo Transport (1990) BC90022993 Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 Business World Computers Pty Limited v Australian Telecommunications Commission (1998) 82 ALR 499 Cinivest Ltd v Yirandi Productions Ltd [1999] NSWSC 1089 Speight v Gosnay (1891) 60 QBD NJ 231 Williams v John Fairfax Group (1991) A Def R 42,087 Dempster v Coates NSWCA, 11 April 1990. Griffiths v Australian Broadcasting Corporation [2003] NSWSC 298; BC200301678 Doan v Advanced Microdevised Inc [2004] NSWSC 216

[21]

15 Dr Wagstaff opposes the filing of the Third Further Amended Statement of Claim. The basis of opposition is detailed in lengthy submissions which canvas fundamental issues esoteric to the law of defamation and pleading. The issues which are thrown up by the lengthy submissions are, it is agreed (using largely the terminology of Mr Connell of Counsel who appears for Dr Wagstaff on the motion but using my own short descriptors in bold type), as follows: (1) that the pleading in para 5 of the Third Further Amended Statement of Claim is bad in law because it is contrary to Gordon v Amalgamated Television Service Pty Ltd [1980] 2 NSWLR 410 - the real matter is not pleaded (the 'Contrary to Gordon point'); (2) it is bad in law because the matters in the First Stone Conversation and Second Stone Conversation cannot be pleaded as one matter (the 'Single Publication point'); (3) it is bad in law because, contrary to Grappelli Derek Block (Holdings) Ltd [1981] 1 WLR 822; [1981] 2 All ER 272, the First Stone Conversation is incapable, as particularised, of identifying either Plaintiff (the ' Grappelli v Block point'); (4) it is bad in law because not authorised by Baltinos v Foreign Language Publications Pty Ltd [1986] 6 NSWLR 85 or Hayward v Thompson [1982] QB 47; [1981] 3 All ER 450 (the ' Baltinos point'); (5) The pleading is defective because of the way it deals with the Stone Question (the 'Stone Question point'); (6) the particular regarding the draft article is improper because it is not part of the matter complained of (the 'Draft Article point'); (7) the purpose of pleading in para 5 is to gloss over the fatal problems in the identification case (the 'First Purpose point'); (8) as to para 7, the pleading does not assert a cause of action based on republication ('cause of action republication') and is bad in law because a claim for republication going to damages only ('damages republication') is bad in law, and contrary to s9 of the Act, and contrary to Grey v David Syme (1992) 106 FLR 103 (the 'Damages Republication point'); (9) pleading on damages should not be allowed as a matter of practice for reasons set out in Blackburn v The State of New South Wales (NSW Supreme Court, Hunt J, 31 January 1991) and Toomey v Mirror Newspapers (1985) 1 NSWLR 173; (10) The purpose of the pleading as a damages republication point is to avoid a jury deciding the issue - an attempt which is futile because of s7A, s76B and s9 of the Act - using the word 'repetition' does not change a republication plea into something else, and there is no purpose in the amendment - it does not raise any new claim (the 'Second Purpose point'); (11) particular (viii) of the particulars of identification in the draft Third Further Amended Statement of Claim is an abuse (the 'Particular (viii) point') (12) in the exercise of its discretion the Court should refuse leave because of: (a) the history of previous amendments; (b) the imposition on Dr Wagstaff (see reference to Exhibit M paras 29-31); (c) delay; and (d) the risk of concurrent findings by judge and jury (see para 20 of submissions of 11 May 2005), (the 'Discretion' point).

[31]

25 In Burrows, Hunt J noted several principles relevant to pleading in defamation law, which I shall summarise: (1) Where a plaintiff relies upon facts or circumstances not stated in the published matter in order to give that matter a secondary or extended meaning, he must establish that a reader to whom it was published was aware of such extrinsic facts or circumstances at the time when the publication took place to him and not later - Grappelli v Derek Block is cited. (2) A plaintiff can rely on certain subsequent publications in order to establish that he was identified in the matter complained of. (3) There is a distinction between subsequent material used to support identification and material used to add to or vary the meaning of the matter, although Hunt J thought that the justification for the distinction is not made clear by the Court of Appeal in Hayward . (4) Where the matter complained of refers to other material in the same newspaper, the plaintiff may be required to tender that other material in his case, if it is capable of affecting the sense of the matter complained of. (5) Where there are two separate publications by the defendant, the plaintiff is entitled to (or may be obliged to) have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other. (6) 'Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the Statement of Claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add "true" innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation': from Abbott v TCN Channel Nine (NSW Supreme Court, Hunt J, 6 October 1987).

[68]

58 Interesting questions arise as to the status of judgments of this Court (see Binskin v Kangaroo Transport (1990) BC90022993 in which Maxwell J had taken a different view to Grove J), the extent to which the views expressed by Grove J in reaching the conclusion that a judgment of a District Court judge is not binding on the Local Court are to be seen as relevant to the present issue (which I doubt), and as to whether the approach of the NSW Court of Appeal in Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, and of Gummow J, then a judge of the Federal Court, in Business World Computers Pty Limited v Australian Telecommunications Commission (1998) 82 ALR 499 in refusing to regard themselves as bound by decisions of a single judge of the High Court, provide further support for the necessary link between appeals and the hierarchy of precedent (as I am inclined to think they do), but in my view, and with all due respect to Acting Judge Cooper (and Grove J if indeed he was implicitly expressing a contrary view on this topic), the statements of principle in Proctor and the judgments of Barwick CJ and Stephen J in Viro and Brennan J (as he then was) in Trident v McNiece provide sufficient authority for the view that a judge of this Court is not bound by a decision of a single judge of the Supreme Court, because even though the District Court is not a court of record and is an inferior court in the curial hierarchy to the Supreme Court, there is no appeal from a decision of this Court to a single judge of the Supreme Court. I accept, of course, that any decision of a single judge of the Supreme Court is entitled to considerable respect and ought be followed unless after due consideration of it, this Court is convinced that it is wrong, for example because some relevant matter or case was not brought to the Supreme Court judge's attention. I would regard that principle, which might be described as a broad principle of comity, as extending to judgments of all Australian Superior Courts.

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