Plaintiff v Defendants

Supreme Court of Victoria|2013-05-06|Before: BEACH J

PRACTICE AND PROCEDURE - Appeal - Defamation - Pleadings - Statement of claim - Application to amend statement of claim - Aggravated damages - Sufficiency of pleading - Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 applied.

1 In this proceeding, the plaintiff claims damages for defamation against the defendants in relation to a response made to a complaint by the plaintiff to the Australian Press Council. The plaintiff complains that the response conveyed a number of imputations defamatory of him. The imputations pleaded by the plaintiff include:

(b) Mr Barrow is a person who has habitually, persistently and without any reasonable ground brought vexatious legal proceedings over a long time.

...

(d) Mr Barrow is a vexatious litigant in many forums over a long time.

2 By a summons filed 14 January 2013, the plaintiff sought orders that he be granted leave to file and serve an amended statement of claim and an amended reply. By a summons filed 4 February 2013, the defendants sought orders striking out parts of the plaintiff's reply.

3 On 3 April 2013, the summonses came on for hearing before Daly AsJ. On that day, her Honour made orders dealing with both summonses. Further, her Honour made procedural directions and fixed the matter for trial on 15 October 2013.

4 On 17 April 2013, the plaintiff filed a notice of appeal. In his notice of appeal, the plaintiff makes complaint about paragraph A of Other Matters and paragraphs 1 and 10 of the orders made by her Honour.

5 In paragraph 1 of her Honour's orders, the plaintiff was given leave to file an amended statement of claim substantially in the form of a draft provided by him - save for paragraphs 12 and 13 of that document. In paragraph 10 of her Honour's orders, the plaintiff was ordered to pay 50 per cent of the defendants' costs of and incidental to both summonses. Paragraph A of Other Matters in the authenticated order was in the following terms:

I agree that the position in Victoria is that in order to found a claim for aggravated damages, the plaintiff must plead contumelious or other like conduct on the part of the defendant which justifies an award of aggravated damages. It may well be that the plaintiff's knowledge of the falsity of the allegations may be relevant to the quantum of any award of general damages.[1]

7 In essence, the plaintiff makes complaint about the refusal to give him leave to plead proposed paragraphs 12 and 13 in his amended statement of claim. Under the proposed heading "Aggravation", proposed paragraphs 12 and 13 are in the following terms:

Mr Barrow knew that each of the imputations at sub-paragraphs 10(a), (b), (c), (d) and (e) was a false innuendo as soon as he became aware on or about 29 February 2012 that the Defendants had published the Bolt Response.

PARTICULARS

Mr Barrow became aware the Defendants had published the Bolt Response when he read the chain of emails sent to him by Mr Herman of the Press Council on or about 29 February 2012. The chain of emails is annexed hereto and marked "Annexure C".

By reason of Mr Barrow knowing that each or any of the imputations at sub-paragraphs 10(a), (b), (c), (d) and (e) was a false innuendo, the Bolt Response was published in circumstances entitling Mr Barrow to an award of aggravated damages.

8 The grounds of appeal (as typed by the plaintiff) are as follows:

Her Honour erred in finding that the plaintiff's knowledge of the falsity of the allegations of defamatory imputations could not found a claim for aggravated damages in the State of Victoria in that, in the absence of any Victorian precedents in point, comity is ruptured with the Supreme Court of New South Wales and Court of Appeal of New South Wales in point in respect of proceedings where the governing Defamation Act 2005 (Vic) and Defamation Act 2005 (NSW) is uniform legislation.
Further, or in the alternative, her Honour erred in finding that an award of aggravated damages is limited to the conduct of the defendant.
Further, or in the alternative, her Honour erred in failing to apprehend that there is no presumption of falsity of defamatory imputations following a corruption of the principle in Roberts v Camden.[2]
Further, or in the alternative, her Honour erred in failing to apprehend that it is conventional practice to plead the plaintiff's knowledge of the falsity of the allegations of defamatory imputations in the State of Victoria to found a claim for aggravated damages.

9 No ground of appeal is specifically directed to the costs order made by her Honour. Further, no application for leave to appeal in relation to the costs order was made by the plaintiff.[3] Accordingly, absent a grant of leave, unless the plaintiff can persuade me that paragraph 1 of the orders below is wrong, there is no basis for interfering with the exercise of her Honour's discretion as to costs.

10 By paragraph 1 of the orders below, the plaintiff was given leave to amend his statement of claim. However, the leave given was on terms that the proposed pleas in draft paragraphs 12 and 13 not be made. Her Honour's reason for this was set out in paragraph A of Other Matters.[4] Essentially, her Honour's reason for refusing leave in respect of proposed paragraphs 12 and 13 was that mere knowledge by the plaintiff that an imputation was false cannot (without more) found an entitlement to aggravated damages.

11 With respect, I agree with her Honour. As was said by Gillard AJA[5] in Herald & Weekly Times Ltd v Popovic:[6]

There are two well-established principles that apply where a claim is made for aggravated damages. The first is the oft-cited dictum of Lord Esher MR in Praed v Graham[7] where his Lordship said -

[T]he jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.

Secondly, the conduct of the publisher must meet the description of what the High Court said in Triggell v Pheeney[8] concerning aggravation:

... as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.

12 In support of his submission that a plaintiff's mere knowledge that an imputation was false can (without more) entitle the plaintiff to an award of aggravated damages, the plaintiff referred me to passages in Rigby v Associated Newspapers Ltd,[9] Australian Consolidated Press Ltd v Uren,[10] Waterhouse v Broadcasting Station 2GB Pty Ltd,[11] Davis v Nationwide News Pty Ltd,[12] Haertsch v Channel 9 Pty Ltd & Ors[13] and Association of Quality Childcare Centres of NSW v Manefield.[14] These were the authorities relied upon by the plaintiff before Daly AsJ. They were also the primary authorities relied upon on this appeal.[15] However, on appeal the plaintiff also relied upon a number of other authorities said to be to the same effect as these authorities.[16]

13 Properly analysed, none of these cases are of assistance to the plaintiff. In the passage in the judgment of Walsh JA in Rigby relied upon by the plaintiff, Walsh JA was discussing the judgment of Jordan CJ in Goldsbrough v John Fairfax & Sons Ltd.[17] Walsh JA was dealing with a line of authority concerned with whether or not in New South Wales (where truth was not a complete defence at the time) a defendant could lead evidence of truth in mitigation of damages. Walsh JA said:[18]

In England the primary reason for refusing to allow the defendant to use such evidence to mitigate the damages was that, if proved, truth would be a complete defence, and that a defendant who does not plead what would be a defence should not be permitted to elicit the same facts to reduce damages. In many cases in this Court, it was held that a defendant could give evidence of truth in mitigation of damages without a plea of justification, because here truth alone was not a defence and, therefore, what the courts here regarded as being the reason for the English rule did not exist. But, then, in Goldsbrough v John Fairfax & Sons Ltd [1934] NSWStRp 43; (1934), 34 SR (NSW) 524, Jordan CJ, asserted that that was not the only reason for the English rule. He regarded it as being based also upon another consideration, applicable as much here as in England, namely, that damages are to be given for loss of reputation, which does not depend upon the truth or falsity of what is published. However, the learned Chief Justice acknowledged that there were exceptional cases to which the rule would not apply. He gave as an example a case where the plaintiff contends that the defamatory facts are the gratuitous invention of the defendant and claims exemplary damages and he said that the defendant could give evidence of truth to rebut that claim.

If this is correct, it is not easy to see why the question of truth or falsity cannot be considered also, even if it is irrelevant to actual loss of reputation, in order to determine the extent of the hurt to the plaintiff, which can be taken into account, not as a matter of punitive damages, but (however illogically) as part of the damage done to the plaintiff. See the article by Mr W J V Windeyer (as he then was) "The Truth of Libel" in 8 ALJ 319, at p 324. It seems reasonable to suppose that mental distress and hurt will ordinarily, although not always, be greater if a false libel is published than if the truth is published. But, in any event, the existence of this "head" of damage means that the damages (other than punitive damages) are not confined exclusively to damage to reputation. But the proposition that they are so confined seems to be the foundation of the main reason given by Jordan CJ, for holding to be applicable in New South Wales the rule that a defendant may not use truth to mitigate damages.

14 Rigby is not authority for the proposition for which the plaintiff contends. Walsh JA was saying no more than where a false defamatory imputation is published, the plaintiff's hurt feelings may be greater than if a true defamatory imputation was published. In such circumstances, the plaintiff's damages may be greater (to compensate for the increased hurt feelings). However, nothing in Rigby suggests that such circumstances on their own are sufficient to found an entitlement to aggravated damages.

15 Similarly, Australian Consolidated Press Ltd v Uren is of no assistance to the plaintiff. Uren was not a case about aggravated damages. It was a case about exemplary damages. In the course of his judgment, Windeyer J[19] discussed the line of authority subsequently referred to by Walsh JA in Rigby. Windeyer JA noted that the questions that arose were peculiar to New South Wales. His Honour noted that it was not necessary in Uren to consider the correctness of Jordan CJ's judgment in Goldsbrough.[20]

16 In the course of his judgment, Windeyer J noted the proposition that a plaintiff might "prove the matter untrue in order to aggravate damage".[21] The plaintiff relies upon this sentence in support of his contentions. However, the sentence must be read in context. This was not a statement that mere proof that a matter is untrue justifies an award of aggravated damages. It was no more than an acknowledgment of what was said by Walsh JA in Rigby that there might be increased damage (by way of hurt feelings) in a case where the libel was untrue; and in such cases, ordinary compensatory damages might be that much higher to account for that matter.

17 In Waterhouse v Broadcasting Station 2GB Pty Ltd, the plaintiff relies upon the following statement in the judgment of Hunt J: [22]

Falsity is a matter which goes to aggravated compensatory damages, rather than ordinary compensatory damages ... . As I pointed out in the earlier part of this judgment, the falsity of the matter complained of is relevant only so far as it affects the imputations upon which the plaintiff relies; the falsity of any other part of the report is irrelevant to the issue of aggravated damages. It would be sufficient, therefore, to allege only that the imputations were false in the same way as a defendant asserts, in mitigation of damages, that the imputations were true ... .

18 However, like the passages in Rigby and Uren which the plaintiff relies upon, this passage must be read in context. As Hunt J noted four paragraphs earlier on in his judgment in Waterhouse:[23]

Conduct on the part of the defendant which is relevant to the issue of aggravated damages need not be malicious, but it must be capable of amounting to conduct which was in some way unjustifiable, improper or lacking in bona fides ... .

19 The same points may be made in respect of the remaining authorities of Davis, Haertsch and Manefield. In Davis,[24] the plaintiff relies upon paragraphs [34] and [35] as literally saying that the falsity of imputations may justify an award which includes aggravated damages. However, a consideration of the facts in Davis[25] shows that the requirements of Triggell v Pheeney that the defendant's conduct lacked bona fides or was improper or unjustifiable, were not met. The same point may be made in respect of Haertsch,[26] Manefield[27] and the other cases relied upon by the plaintiff.[28]

20 In short, none of the authorities relied upon by the plaintiff cut across what was said by the High Court in Triggell v Pheeney - namely, that in order to be entitled to an award of aggravated damages, a plaintiff must establish that some relevant part of the defendant's conduct was in some way lacking in bona fides or improper or unjustifiable. Daly AsJ was, with respect, correct when she refused leave to the plaintiff to amend his statement of claim to plead a claim for aggravated damages founded upon mere falsity and the plaintiff's knowledge of the falsity of the imputations pleaded by him.

21 To the extent that one might find any case capable of being construed to suggest that an award of aggravated damages may be made where no relevant conduct of the defendant has been found to be lacking in bona fides or improper or unjustifiable, such a case would be contrary to what is (and has been since at least Triggell v Pheeney) settled law in this State. Further, as the authorities to which I have referred demonstrate, the acceptance of this proposition does not result in any "rupturing of comity" with the Supreme Court and Court of Appeal of New South Wales.[29]

22 For the sake of completeness, I should say that the above conclusion does not rest upon any presumption of falsity.[30] Further, and in any event, as has been said before, it is now too late to question whether the acceptance of this presumption involves any misunderstanding of Roberts v Camden.[31]

23 Finally, it follows from what I have said above that the assertion in ground 4 of the notice of appeal that there is some conventional practice to plead the plaintiff's knowledge of the falsity of the allegations of defamatory imputations to found a claim for aggravated damages must be rejected insofar as it contains an assertion that the mere knowledge of falsity by a plaintiff may entitle that plaintiff to aggravated damages. While it is certainly true that it is correct in appropriate cases to plead the plaintiff's knowledge of falsity as increasing the hurt as part of a claim for aggravated damages, for the reasons given above, such a plea must be coupled with a relevant plea of conduct by the defendant that is lacking in bona fides or is improper or unjustifiable. Indeed, when one looks closely at the pleadings which the plaintiff has exhibited to his affidavits of 29 April and 1 May 2013, one sees that the claims for aggravated damages in the various statements of claim plead more than the plaintiff's mere knowledge of the falsity of imputations: the relevant pleas go on to plead in conformity with Triggell v Pheeney.

24 For these reasons, the plaintiff's complaints with respect to paragraph 1 of the orders made below must be rejected.

25 Paragraph A of Other Matters sets out Daly AsJ's reasons for refusing the plaintiff leave to plead proposed paragraphs 12 and 13 of his amended statement of claim. Being reasons, they are not susceptible of any appeal. While that is sufficient to dispose of the plaintiff's complaint in respect of paragraph A, it follows from what I have said above that the plaintiff's criticisms of this paragraph are in any event unfounded.

26 The plaintiff, having failed in his appeal with respect to paragraph 1 of the orders made below, there is no basis for the re-exercise of the Court's discretion as to costs. To the extent that the plaintiff maintains any complaint about paragraph 10 of the orders below, as I have said above, no leave having been granted to appeal in respect of an order for costs within the discretion of the Court, the appeal (to that extent) is incompetent. Further, and in any event, the plaintiff has not established that there was any error in her Honour's exercise of her Honour's discretion as to costs.

27 As has been pointed out repeatedly, it is well established that an appellate court will not, in the absence of strong reasons, interfere with the exercise of discretion by the court below with respect to the question of costs.[32] The plaintiff's argument in respect of costs[33] (unsupported by any ground of appeal) appears to seek to merely relitigate the question of costs. No error of principle is identified. Further, the submission appears to proceed on an erroneous assumption that because the plaintiff was permitted to amend his statement of claim and reply in respect of matters not the subject of this appeal, the plaintiff has an entitlement to costs. More likely, her Honour determined that costs questions fell to be determined by reference to the fact that indulgences were being sought before her by the plaintiff.

28 The plaintiff's complaints with respect to paragraph 10 of the orders made below must be rejected.

[4] Conveniently, her Honour gave brief reasons in paragraphs A to E in Other Matters for the various contested orders made by her Honour.

[5] With whom Winneke ACJ and Warren AJA (as her Honour then was) agreed in separate concurring judgments on this issue.

[6] [2003] VSCA 161; (2003) 9 VR 1, 77 [381]-[382] (emphases added).

[9] [1969] 1 NSWR 729, 738 (Walsh JA).

[11] (1985) 1 NSWLR 58, 75 (Hunt J).

[12] [2008] NSWSC 693, [34]-[35] (McClellan CJ at CL).

[13] [2010] NSWSC 182, [43] (Nicholas J).

[14] [2012] NSWCA 123, [146] (Beazley JA (as her Honour then was), with whom McColl JA and Tobias AJA agreed).

[15] See paragraphs 6, 7 and 10 of the plaintiff's outline of submissions filed 29 April 2013.

[16] West v Wigg (1886) 3 WN (NSW) 46; Harper v Bennett (1900) 21 NSWR 365; Lemaire v Smith's Newspapers Ltd [1927] NSWStRp 46; (1927) 28 SR (NSW) 161; Mutch v Sleeman [1928] NSWStRp 104; (1928) 29 SR (NSW) 125, 134; King v John Fairfax & Sons Ltd [1983] 1 NSWLR 31, 33; Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544, 549; Singleton v Ffrench (1986) 5 NSWLR 425, 442-4; Ainsworth v Burden [2005] NSWCA 174, [91] and Hennessy v Lynch (No 3) [2007] NSWDC 268, [161].

[18] Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729, 738 (emphasis added).

[23] (Citations omitted) (emphasis added).

[25] And in particular the matters referred to in paragraph [32].

[26] See [2010] NSWSC 182, [16] where Nicholas J refers to a summary of the principles relating to damages in defamation cases in Ryan v Premachandran [2009] NSWSC 1186, [114]-[122], and in particular at [121] (emphasis added):

"With respect to aggravated damages it is important to keep in mind that any award of aggravated damages must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant's conduct and must not include any element of punitive damages. Such conduct must be in some way unjustifiable, improper or lacking in bona fides (Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497)."

[27] Wherein Beazley JA said at [145]:

"His Honour next considered whether the appellant was entitled to an award of aggravated damages. His Honour noted that to justify an award of aggravated damages, the aggravating conduct of the defendant must be improper, unjustifiable or lacking in bona fides: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497."

[28] See footnote 16 above. In each of these cases where the issue of aggravated damages was considered (which was not all of them), a complete reading of the case demonstrates that coupled with falsity or knowledge of falsity was the requisite improper conduct of the defendant.

[29] Cf paragraph 4 of the plaintiff's outline of submissions dated 29 April 2013.

[30] Cf ground 3 of the notice of appeal.

[31] [1807] EngR 404; (1807) 9 East 93; (1807) 103 ER 508. See The Age Co Limited v Elliott [2006] VSCA 168; (2006) 14 VR 375, 378 [15] (Buchanan JA), [20] (Ashley JA).

[32] Transport Accident Commission v O'Reilly [1998] VSCA 106; [1999] 2 VR 436; Spotless Group Ltd v Premier Building & Consulting Pty Ltd (recs appt) [2008] VSCA 115, [10]-[11]; and A Team Diamond Headquarters Pty Ltd & anor v Main Road Property [2009] VSCA 208; (2009) 25 VR 189, 191 [8].

[33] Set out in paragraphs [22]-[24] of the plaintiff's outline of submissions dated 29 April 2013.

At a glance

Court

Decision date

Before

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Judgment (74 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)