Plaintiff v Defendant

2 The trial commenced on 23 July, and the jury was empanelled on the next day. At that stage, the defendant a pleaded defence under s 28 of the Defamation Act, and qualified privilege under s 30 of the Defamation Act.

3 On Monday 30 July, the defendant successfully sought leave to amend its defence by adding, in each action, a defence of common law qualify privilege. The plaintiff delivered a reply on 2 August pleading malice to the defence of qualified privilege at common law, but not to the defence as statutory qualified privilege.

4 It seems clear at this stage from the transcript that that was not simply a textual oversight, but, rather, a decision made by the practitioners for the plaintiffs not to rely on malice in answer to s 30, which may arguably be different, but to rely on an answer to s 30 rebutting the reasonableness of the conduct of the defendant in publishing the matter.

5 After a trial of four and a half weeks, the jury delivered its verdicts in each of the four actions on 21 August. By those verdicts it found in favour of the plaintiffs in respect of each of the defamatory meanings pleaded by them. It decided a number of disputed facts which will be necessary for the determination by me of issues of law in relation to the defences, and it upheld the plaintiffs' reply to the defence of qualified privilege at common law by finding that the publication was actuated by malice. It made that finding by way of special verdict in answer to Question 13, namely, it found that, in publishing the matter, the dominant motive of the defendant was an improper purpose ulterior to a duty of the defendant to publish, to recipients of the letter, the reasons of Mr Holding for deciding, in August 2008, to merge the First Mildura Irrigation Trust with Lower Murray Water.

6 I adjourned the case to this day for submissions relating to the two remaining defences, the defence under s 28 of the Defamation Act and the defence of statutory qualified privilege under s 30, to hear argument on issues of damages, and to hear argument concerning the question of publication to one witness, Mr Glenn Miller.

7 The plaintiff now applies to further amend its reply to add a plea of malice to the defence of statutory qualified privilege under s 30 under the Defamation Act. Dr Collins has opposed that application on three grounds: firstly, that no proper explanation has been given by the plaintiff for the late application to amend; secondly, that the application to amend would be futile; and thirdly, that the defendant would suffer prejudice if the application were granted.

8 While I do not in terms accept the explanation for the late application given in the affidavit of the solicitor - which I do not think quite reflects what did occur - nevertheless I do consider that there was a reasonable explanation to which I have already referred. It is clear that decisions, that were made in the heat of battle in the case, were made under enormous pressure by counsel. As I say, I was conscious of the prodigious amount of work being done on both sides, and, indeed, by myself, in the conduct of what was, whilst a very interesting case, nevertheless a very difficult case.

9 In my view, unless there were irreparable prejudice occasioned to the defendant, the plaintiffs ought not to suffer because of a tactical decision made with the best intent, but nonetheless made for grounds on which they do not wish to rely.

10 In relation to the question futility, I must say it is difficult to decide that point. As Dr Collins has correctly pointed out, the reply was directed essentially to the common law plea of qualified privilege which pleaded a specific duty by the defendant to publish the material.

11 The common law defence of qualified privilege is quite different to the statutory privilege, and in terms the special verdict given by the verdict does not, it seems, directly respond to the formulation of the statutory qualified privilege. However, I would not reject the application for leave to amend on the basis of futility, because this is an area which has not been considered in any detail in previous authorities, and I think there is at least an argument that can be put that the verdict given in this case might overcome the statutory privilege.

12 I say no more than saying that that is arguable. It certainly needs greater consideration than I can give on an application for leave to amend.

13 The matter which concerns me most, and which in the end I think Mr Gilbertson was unable to meet, is that I am satisfied that, if I was to grant the application for leave to amend, the defendant would suffer irreparable prejudice. Dr Collins has pointed out that if malice had been pleaded to the plea of statutory qualified privilege, the defendant would have been entitled to, and indeed would have needed to, address questions to Mr Leamon about what he knew about the interest or apparent interest of the particular individuals to whom the matter was published, or at the very least, to individuals fitting into that category of persons. It may well be that answers obtained from Mr Leamon would not have assisted the defendant, but that is entirely a matter of speculation. It does seem, however, highly likely that that type of issue would have been addressed with Mr Leamon, and it was not.

14 It is therefore with some regret that I do reach the conclusion that if I allow the application for leave to amend the defendant would suffer irreparable prejudice, and for that reason, and that reason alone, I reject the application by the plaintiffs for leave to amend their reply.