Plaintiff v Defendant

2 In response to the proceeding, the defendant has delivered a defence pleading a defence under s 28 of the Defamation Act, namely, that the material published by it constituted the publication of a public document, and also a defence under s 30 of the Defamation Act, namely a plea of statutory qualified privilege.

3 The trial in each of the four proceedings, which are being heard together, commenced before me on 23 July last. There was preliminary argument on that date on a matter on which I ruled. On the next day, 24 July, the jury was empanelled and the evidence commenced. So far, the plaintiffs have called four witnesses relating to the issue of publication, and the first, and principal plaintiff, Mr Belbin, has given evidence-in-chief, and his cross-examination is completed. He has not yet been re-examined.

4 Applications have been made on behalf of the defendant by Dr Collins, of Senior Counsel, who appears with Mr Kaskani, for the defendant, to amend the defence to include a plea of common law qualified privilege. That application has been made on the basis of two matters, which, Dr Collins has submitted, have emerged through the evidence of the four witnesses who were called before Mr Belbin gave evidence.

5 First, he submitted that the evidence of those witnesses demonstrated that each citizen in the Mildura area, to whom the matter was published, had an interest in the subject matter, namely, the closure of the First Mildura Irrigation Trust by Minister Holding in August 2008 and the reasons given by the Minister for that closure.

6 Secondly, Dr Collins submitted that, of the four witnesses called on behalf of the plaintiff, three stated that they visited the defendant's website and downloaded the letter published by the defendant on it, because they had already been told that the letter was on the website, and they looked at it for that purpose. Thus, it is sought to be submitted that those persons had a particular interest to receive the explanation of Mr Holding and the defendant had a corresponding interest or duty to communicate it to each of those persons.

7 Mr Gilbertson, who appears for each of the plaintiffs, has opposed the application made on behalf of the defendant for three reasons. First, he points to the delay by the defendant in seeking to amend its defence in each of the proceedings. Secondly, he submits that an amendment would involve irreparable prejudice to each of the plaintiffs. In particular, Mr Gilbertson submitted that, if the common law privilege had been pleaded from the outset, he would have explored with each of the four witnesses the nature of any interest they might have had to receive the explanation given by Mr Holding for closing the First Mildura Irrigation Trust.

8 Thirdly, Mr Gilbertson submitted that, if I were to grant the leave sought by the defendant, that would occasion a delay in the trial because the plaintiff would seek to plead malice by way of response. He submitted that malice has not so far been pleaded, because the plaintiffs have each been content to seek to negate the reasonableness of the publication by the defendant as an element of the statutory qualified privilege under s 30 of the Defamation Act.

9 He submitted that if he were to seek to plead malice, he would wish to interrogate the defendant, that he had not done so yet, and that he would wish to be able to do so in order to elicit answers to interrogatories which he could tender as part of his own case.

10 The principles, relating to amendments of the type sought to be made by Dr Collins on behalf of the defendant have, of course, been recently considered by the High Court in Aon Risk Services Australia Limited v Australian National University.[1] They were recently considered and helpfully summarised by Vickery J in Namberry Craft Pty Ltd and Anor v Daniel Watson and Anor.[2] In essence, as His Honour there points out, the relevant factors include: first, whether there would be substantial delay caused by the amendment; secondly, the extent of wasted costs which would be incurred as a result of any amendment; thirdly, whether there would be irreparable prejudice caused by the amendment; fourthly, concerns of case management arising from the stage in the proceeding when the amendment is sought; fifthly, whether the grant of the amendment would lessen public confidence in the judicial system; and, sixthly, whether a satisfactory explanation has been given for seeking the amendment at the stage at which it has been sought.

11 In considering the application made by the defendant, I should first note that it has not been submitted by Mr Gilbertson that the two bases, upon which Dr Collins now seeks to put common law qualified privilege, are not at the least arguable. In my view, Mr Gilbertson is correct in not seeking to make such a contention. Without expressing any view either way in relation to the merits of such a defence, if I were to permit it to be pleaded, it is, I think, fairly clear that such a defence would be arguable for the purposes of considering this application.

12 Returning to the matters outlined by Vickery J in Namberry Craft, in the context of the current trial, the critical factors which I need to consider are, first, whether there would be irreparable prejudice occasioned to the plaintiffs if I were to allow the amendment, and, secondly, whether there would be untoward delay in the prosecution of the trial if the amendment were allowed.

13 Certainly, the defendant is seeking to amend its defence at a late stage in the proceeding. While I understand that the matters, which have emerged relating to the circumstances in which three of the four plaintiffs' witnesses came to visit the website, could only have been known to the defendant after those witnesses gave evidence, on the other hand, the other basis relied upon, namely, that there was a strong public interest in this area and surrounding areas in relation to the closure of the FMIT, was a matter that was always evident to the defendant. Indeed, Dr Collins did not seek to contend to the contrary. Clearly, the closure of the FMIT by Minister Holding in August 2008 was a matter of strong public discussion and debate, and it gave rise to the expression of very strong public interest and emotion.

14 Turning, then, to the issue of prejudice, as I have stated Mr Gilbertson has submitted that if I were to permit the amendment to be made, he would be prejudiced, because he has not explored with any of the four witnesses the nature of what interest they might have had in the explanation given by Minister Holding for the closure of the FMIT.

15 However, it is clear that that matter was already a matter which had been pleaded in the case and was a relevant matter for consideration. Under s 30(1)(a), the first element of the statutory qualified privilege concerns whether the particular recipient in question has an interest or an apparent interest in having information on the subject. Indeed by their replies in the case, each plaintiff pleaded that the persons, to whom the matter was published, did not have an interest or apparent interest in having the information on the subject alleged. Thus, that matter was well and truly alive and has been well and truly alive regardless of whether I allow the amendment.

16 It would seem to me that Mr Gilbertson did not explore the matter further with his witnesses for good reason. I do not see how that matter would be in any way altered or enlivened differently if I were to permit the defendant to plead common law qualified privilege in the matter. Thus, I am not persuaded that if I were to allow the amendment, there would be irreparable prejudice to the plaintiffs.

17 I turn, then, to the question of delay. As I stated, Mr Gilbertson now wishes to plead a reply by way of malice should the defendant be entitled to plead common law qualified privilege. I note in passing that the plaintiffs have not in their reply pleaded malice under s 30(4), although it does appear that, in an earlier version of their reply, they had done so. Mr Gilbertson explained that they have not as yet sought to plead malice in the current trial, because they were content to rely on a lack of reasonableness in the publication as an answer to the defence of statutory qualified privilege.

18 Certainly, if I were to allow the amendments, the plaintiffs would in each case be entitled to deliver a reply pleading malice. In respect to such matters, Mr Gilbertson is correct in pointing out that the plaintiffs would bear the onus of proof. The question is whether they would be the subject to any prejudice in the prosecution of an allegation of malice, if I were to permit the amendment. Mr Gilbertson submitted that such prejudice would lie in the fact that, if common law qualified privilege had been pleaded hitherto, a reply pleading malice would have been delivered, and the defendant in each action would have been interrogated. Thus, the plaintiffs would have available to them the answers to interrogatories by the defendant in relation to the issue of malice, which they could tender as part of their own case.

19 However, I should observe that, particularly in view of the factual issues which seem to be at large in this case, it is difficult to see what the plaintiffs could achieve by interrogation in relation to the issue of malice, which interrogation would be rather limited, compared to what could be achieved by cross-examination of the key defendant witnesses on the issue of qualified privilege.

20 The defendant bears the onus of proof on qualified privilege by statutory and common law. Dr Collins has properly and correctly accepted that he would not be in a position, on the closure of the plaintiff's case, to seek to non-suit the plaintiffs on the issue of qualified privilege and malice. That being so, I do not apprehend that there would be any untoward prejudice to the plaintiffs in not having interrogated the defendant in relation to the issue of malice.

21 Indeed, in passing, I should note that the particulars provided under paragraph 3 of the reply, in which it was pleaded that the conduct of the defendant in publishing the material was not reasonable, were largely directed to matters which I would expect would go to the issue of malice. I do appreciate that the plaintiffs would need to go further than pleading the matters set out in the particulars under paragraph 3, but nonetheless a number of the issues, which have been raised by that pleading, and indeed some of which are already the subject of evidence, are already in issue between the parties.

22 Based on that matter, I do not see that there would be any untoward delay if I were to allow the amendment. Mr Gilbertson has correctly told me that he would be able to deliver a reply reasonably shortly, pleading malice, and I would certainly permit him a reasonable time to do so. Dr Collins and Mr Kaskani are well and truly on notice that such a plea will be delivered.

23 The application to amend is late. However it is important that each party in this case have the ability to agitate such issues as are relevant between them. I have found that there is no irreparable prejudice to the plaintiffs and there would be no undue delay in the trial if I were to allow the amendment. I therefore grant the defendant in each action leave to file and serve the fourth amended defence in the form which has been provided to me.

[1] [2009] HCA 27; (2009) 239 CLR 175.

[2] (2011) VSC 136 at paragraph 36.