Plaintiff v Defendant

Plaintiff v Defendant - [2012] VSC 254 - VSC 2012 case summary — Zoe

[28]

"[8] The defendant's imputations are, in each case, imputations of reasonable suspicion. But the issue raised by the plaintiff's imputations is not whether he was merely suspected of particular arguably reprehensible conduct but rather whether he engaged in that conduct. In Lewis v Daily Telegraph[10] Lord Reid expressed himself as being firmly of the view that there is a great difference between saying that someone has behaved in a suspicious manner and saying that he is guilty of an offence.[11] Lord Hodson, in the same case, acknowledged that whilst it might be defamatory to say that someone is suspected of an offence, such a statement does not carry with it an allegation that he has committed the offence.[12] Simon Brown LJ (with whom Sir Ralph Gibson agreed) in Stern v Piper[13] accepted that Lewis' case decided that an allegation that someone is suspected of guilt is different to and less serious than an allegation that he is actually guilty. See also Corse v Robertson[14] and Singleton v Hudson[15].

[9] In Shah v Standard Chartered Bank[16] May LJ summarised the position in a passage directly in point -

A publication that a person is guilty of something differs from a publication that there are reasonable grounds to suspect that he is guilty. Each is normally capable of being defamatory. The second will usually be less serious than the first. To justify the first publication, you have to establish that the person is guilty. To justify the second publication, you have to establish that there are objectively reasonable grounds for suspicion.[17]

[10] Mr Robertson SC for the defendant submitted that the imputations sought to be relied upon by the defendant constituted no more than permissible variations of the imputations of guilt which, the Court has already held, are capable of arising in the terms pleaded by the plaintiff from the parts of the article upon which he relies. He relied particularly on a passage in the judgment of Ormiston JA in Hore-Lacy[18] where his Honour speaks of a case which might go to the jury with the plaintiff pleading imputations of high impropriety (ie in this case, guilt) and the defendant asserting that its meaning referred to less serious peccadillos which it wished to justify (ie in this case, suspicion of guilt). He also referred to the judgment of Charles JA where, after referring to the judgment of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd[19] he expressed the view that the High Court judges' criticism of the practice sanctioned in Polly Peck (Holdings) Plc v Trelford[20] of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.

[11] Mr Robertson contended that the plaintiff in this case could obtain a verdict in his favour if the tribunal of fact found, not that the article conveyed an imputation of guilt but merely that it contained an imputation of reasonable suspicion of guilt.

[12] I cannot agree. As the cases to which I have referred make clear, whilst both allegations might be libellous they are not variants of each other as that term is used in Hore-Lacy. The two sets of imputations raise quite different cases."[21]

[51]

"(a) ...

(b) ...

(c) Para. 10 asserts that from 25th August to 11th September he worked full time as General Counsel at Novell Pty Ltd. No evidence is offered of that [sic] from anyone at the company, nothing explains what happened during 12 days after the Orders were made up to 25th August, nor during 8 days after the end of that service. None of the weekends, or evenings, that Mr Cunliffe was prepared to use and bill to DLALC during his billing period seem to be available when it comes to Mr Cunliffe himself complying with a Court order, although he does possibly deal in para. 11 with one evening a week for some of the time. I will come to that next.

(d) ...

(e) ...

(f) I discussed Mr Cunliffe's assertions noted above about 'doing work' for Chevron with Mr Richard Thompson, a former partner of Mr Cunliffe, when I spoke to Mr Thompson on 18th September 2008. Mr Thompson described the 'work' for Chevron as a single submission prepared on a pipeline matter over a single weekend years earlier by a member of the firm other than Mr Cunliffe, and no more. That hardly seems to be a basis for Mr Cunliffe asserting that he acts for Chevron.

(g) ...

(h) During the discussion I had with Mr Thompson, noted above, I told Mr Thompson about the current proceedings, and the current default in Mr Cunliffe complying with the timetable. Mr Thompson confirmed that Mr Cunliffe regularly fails to comply with Court ordered timetables, and as Mr Thompson so colourfully put it, 'there is always some bullshit affidavit at the last minute' as Mr Cunliffe seeks to exculpate himself from his refusal to comply with Court orders. Mr Thompson also offered the view that Mr Cunliffe is unable to bring himself to settle any case he is involved in, and usually loses. On Friday last week, with this re-listing pending, I anticipated Mr Cunliffe's usual trick of sending an after-hours Affidavit when I sent the email to his Solicitor that is annexed hereto and marked 'B'. The parts to which I particularly draw attention are underlined.

(i) This rang true with my own past experience of Mr Cunliffe regularly falling into default, and regularly producing some last minute affidavit or application to divert attention from where it should properly be: on Mr Cunliffe, and his default."

[68]

Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.

Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.

When one turns to the position of investigators, it seems to me that the same degree of necessity applies. It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192:

[113]

"(a) At the time of the publication the Defendant was acting as the solicitor for Darkinjung Local Aboriginal Land Council in litigation in the Supreme Court of New South Wales in which Darkinjung Local Aboriginal Land Council as plaintiff had joined the several parties including the Plaintiff in this proceeding as defendants ('The Related Litigation').

(b) The affidavit sworn by the Plaintiff referred to in the Letter ('the Plaintiff's Affidavit') was sworn by the Plaintiff in circumstances where he was seeking to explain to the Court a failure by him to comply with procedural orders made in the course of the Related Litigation.

(c) The factual issues raised by the Plaintiff's Affidavit were not at the time and have not since been contested in the related litigation, and were no longer relevant to any issue in the related litigation.

(d) The recipient of the Letter Novell Pty Ltd was a longstanding client of the Plaintiff, and had previously employed the Plaintiff as its in-house counsel.

(e) The Defendant knew of the Plaintiff's relationship with Novell Pty Ltd and its CEO, as can be inferred from the content of the Letter.

(f) The Defendant knew or ought to have known that publishing the letter to Novell Pty Ltd would cause the Plaintiff personal and professional embarrassment.

(g) At the time of his publication of the letter, the defendant had no genuine belief that its contents were true. The letter made serious allegations imputing inter alia that the plaintiff had sworn a false affidavit in circumstances where the defendant had no genuine belief in their truth and was recklessly indifferent as to the truth or otherwise.

(h) Prior to publication of the letter the Defendant did not make any enquiries with the Plaintiff as to the truth or falsity of the imputations.

(i) In or about 2006, the plaintiff had complained to the NSW Legal Services Commissioner about the defendant's conduct in the course of the Related Litigation, as a result of which complaint the defendant had been cautioned in March 2008. The complaint was in writing by letter dated 7 July 2006 and the caution was by letter dated 18 March 2008 from the NSW Law Society Professional Standards to the defendant. A copy of the complaint, letters and related documents may be inspected at the plaintiff's solicitors' offices by appointment.

(j) In the circumstances, it is to be inferred that the publication of the Letter and the imputations by the Defendant was made maliciously for the purpose of embarrassing the Plaintiff and placing pressure on him in the context of the Related Litigation.

(k) Further, since the publication of the letter, the defendant has declined to apologise. The plaintiff refers to his solicitors' letter to the defendant dated 8 January 2009 and the defendant's solicitors' letters to the plaintiff's solicitors dated 1 and 8 February 2010, copies of which may be inspected at the plaintiff's solicitors' offices by appointment."

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Judgment (158 paragraphs)

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Cases Cited (12)