Plaintiff v Defendants

Supreme Court of Victoria|2014-11-21|Before: DIXON J

DEFAMATION - Pleadings - Whether leave to amend should be granted to plaintiff - Claim alleged against first defendant out of time - Extension of the limitation period refused - No tenable allegation of publication of defamation by first defendant - Amendments bad in form - Other discretionary consideration - Delay not explained - Costs an inadequate compensation for prejudice - Loss of imminent trial date (second listing) likely - s 5(1AAA), 23B Limitation of Actions Act 1958

2 The first defendant wrote a letter in February 2011 and the second and third defendants wrote a letter in March 2011 ('the first incident'). The plaintiff issued this proceeding based on these letters on 9 January 2013. His claim was commenced outside the one year limitation period prescribed in s 5(1AAA) of the Limitation of Actions Act 1958. Beach J (as his Honour then was) refused the plaintiff an extension of the limitation period to permit that cause of action to proceed. The circumstances of that publication and the defamatory imputations alleged to have been made that were the basis of that cause of action are set out Beach J's judgment.[1] Those claims were struck out of the statement of claim.

3 Two events occurred on 9 January 2012 at Keysborough during a religious ceremony. The first in time, but the third incident pleaded, was at a ceremony for the kissing of the cross and receiving the bread of communion. The publication was by words spoken under or near a tree during this ceremony and this incident is referred to in a shorthand way as the 'tree incident' or 'the third incident.' The particular circumstances of that cause of action were alleged in paragraphs 6A and 6B of an amended statement of claim dated 3 June 2013. This amended pleading was filed after the court refused to extend the limitation period in respect of the first incident and struck out those allegations.

4 The second incident is a separate cause of action based on publication of words spoken in the church hall at Keysborough on 9 January 2012, after the tree incident. This second incident was alleged by the plaintiff when the proceeding was commenced, by paragraphs 7 and 8 of his original statement of claim. The plaintiff alleged that the second and fourth defendants spoke and published words that are set out in the first schedule to the pleading.

5 The original statement of claim alleged in paragraph 9 that in consequence of the defendant's publications, which then referred to the publications of the letters by the first, second and third defendants (the first incident) and the publication of words in the church hall by the second and fourth defendants (the second incident), he suffered loss and damage. Particulars were provided of that loss and damage, although by a curiosity of the drafting of the statement of claim, those particulars appear in the prayer for relief as particulars of the claim for damages. The particulars should properly be understood as being particulars of paragraph 9 of the statement of claim. By those particulars, the plaintiff claimed aggravated damages by reason of a number of circumstances that I will come to in due course.

6 When, following the refusal of the court to extend the limitation period, an amended statement of claim introduced the tree incident allegations as the third incident, the defendants challenged the plaintiff's entitlement to plead these allegations as those events appeared to have occurred more than one year prior to the date of the amended pleading. The form of the pleading was also challenged. That application was not immediately dealt with but it is not necessary to recite its history.

7 The proceeding was listed for trial on 4 March 2014 but did not proceed on that date. It was refixed for trial on 8 December 2014. The plaintiff requested trial by jury.

8 In June 2014, the defendants by summons sought summary dismissal of the plaintiff's claims based on the third incident, pursuant to paragraph 6A and 6B of the plaintiff's amended statement of claim, and the plaintiff sought an extension of the limitation period in order to maintain those claims. This proceeding was not the only proceeding in which allegations in respect of the tree incident have been raised as a basis for a claim for damages for defamation. Thus, there was also an issue whether the plaintiff required leave pursuant to s 23 of the Defamation Act 2005 to bring the claim.

9 There was some delay in determining these various applications because the plaintiff experienced some ill health. Nevertheless, the applications came before me on 23 October 2014. On that occasion, the issue of whether the plaintiff was bringing further defamation proceedings against the same defendant in relation to the same or any other publication of the same or like matter could not be precisely determined, because of the state of the pleadings. The plaintiff stated to the court his desire to amend the pleadings before proceeding with those applications, in particular the application for leave pursuant to s 23 of the Act.

10 I ordered that paragraph 6A and 6B of the amended statement of claim dated 3 June 2013 be struck out and gave the plaintiff leave to serve a proposed further amended statement of claim. Leave to serve a re-pleaded statement of claim was not constrained but the defendants retained the right to object to leave being given to file the further amended pleading under the order that I made.

11 The plaintiff first served a proposed further amended statement of claim dated 17 November 2014, which in paragraph 9 included extensive further particulars of his claim that damages were aggravated. Those further particulars in substance set out the material facts comprising the tree incident which was previously pleaded in paragraphs 6A and 6B. That proposed amended pleading did not seek to introduce a further cause of action against the first defendant concerning the church hall words. That is, there was no amendment proposed of the cause of action pleaded by paragraphs 7 and 8 of the pleading.

12 The defendant's solicitors corresponded with the plaintiff about the proposed amended pleading stating, amongst other things, that the consequence of abandonment of paragraphs 6A and 6B of the statement of claim of 3 June 2013 by the proposed amendment was that the first defendant was no longer a proper party to the proceeding and should be removed. The defendant's solicitors asserted, correctly, that no cause of action was now being alleged or maintained against the first defendant.

13 The plaintiff then withdrew that proposed further amended statement of claim and submitted another proposed amended statement of claim dated 18 November 2014. The material differences were these. First, the plaintiff did not press the further particulars of aggravated damages and they were removed from the pleading. There was no longer any allegations about the third incident being made by the plaintiff. Secondly, the plaintiff proposed to include a cause of action against the first defendant in respect of the church hall words; specifically that the first defendant caused the second and fourth defendants to speak and publish the relevant words using his authority.

14 The proposed particulars of this publication are in the following form:

The first defendant using his authority must have suggested publication and directed that the second and fourth defendants spoke and published or caused to be spoken and published words complained of or words to similar effect 'Go in the church hall and tell them that I won't come in while Trkulja is there. I won't sit in the hall with Trkulja and his family'.

15 The defendants oppose leave being granted for any further amendments to the plaintiff's statement of claim.

16 Leave to amend the statement of claim as proposed will be refused on the following three grounds. First, the amendments seek to raise a new claim against the first defendant that is statute barred. There is no reason to extend the limitation period. Secondly, the amendments are embarrassing in form. Thirdly, there are other discretionary grounds which persuade me that it is not appropriate to grant leave to amend.

17 Turning first to the limitation ground, s 5(1AAA) of the Limitation of Actions Act 1958 states that an action for defamation must not be brought after the expiration of one year from the date of publication of the matter complained of. Section 23B of the Limitation of Actions Act provides that a person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action. Section B(2) states, and I quote:

A court, on an application under sub-s 1, must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication, extend the limitation period mentioned in s 5(1AAA) to a period of up to three years from the date of publication.

18 The principles to be applied on an application for extension of time under s 23B were stated by Beach J in Casley v Australian Broadcasting Corporation.[2] In that case, his Honour restated the principles that he had explained in the application in this proceeding that I earlier referred to, namely, Trkulja v Dobrijevic.[3] Leave to appeal Beach J's decision in Casley was refused by the Court of Appeal. In refusing leave, Hanson JA, with whom Robson AJA agreed, set out the seven propositions identified by Beach J on his analysis of the cases. No criticism or adverse comment was directed towards either the reasoning of, or the propositions stated by, Beach J. Those seven propositions are set out at paragraph 28 of the decision in Casley.

19 It is unnecessary to refer to all seven propositions. The fifth and sixth propositions are that the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired. Instead, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.

20 I have not been persuaded by the plaintiff that it was not reasonable in the circumstances to commence a proceeding within the one year period. It is open to debate whether there is in fact any application before the court to extend the time pursuant to s 23B(2). Mr Trkulja contended that an earlier application still stood and put the issue before the court. As I noted, an application was earlier before the court in respect of the amendments proposed under paragraph 6A and 6B of the statement of claim. There is no application dealing directly with the amendment proposed to paragraph 7 of the statement of claim. There was also the earlier application dismissed by Beach J. The affidavit of explanation provided by the plaintiff to Beach J deposed to the circumstances that delayed the issuing of proceedings against the first defendant in respect of the first incident, the letters. There was no explanation about the failure to issue the proceeding in respect of the second incident against the first defendant because it was not then in contemplation. Further, no explanation of any sort of the period that has elapsed since that affidavit was prepared in March 2013 was provided.

21 In Mr Trkulja's favour, I am prepared, as he asked me to do, to consider this issue on the basis of the existing material before the court. However, that material does not persuade me that it was not reasonable in the circumstances for the plaintiff to have commenced the cause of action against the first defendant that is proposed by the amendment to paragraph 7 within the one year period after 9 January 2012. Having regard to the way the amendment is now to be pleaded, I cannot conceive of any proper explanation and none was offered from the Bar table by Mr Trkulja.

22 That is because that very cause of action, as it involved the second and fourth defendants, was pleaded in the original statement of claim. All that Mr Trkulja seeks to add by the currently proposed amendments is the allegation that the first defendant caused that publication by the use of his authority. There is no circumstance put before the court that persuades me that it was not reasonable to have commenced that claim - the cause of action against the first defendant in respect of the words spoken in the church hall - within the one year period. Mr Trkulja knew all of the material facts that constitute the cause of action during that period.

23 Next, the proposed amendments are embarrassing, principally because they are speculative and ambiguous. The particulars of publication demonstrate that the plaintiff has no knowledge of what occurred between the first defendant on the one part and the second and fourth defendants of the other part when the first defendant exercised authority. So much is evident by the use of the words 'must have suggested'.

24 A second source of ambiguity is the expression 'tell them', which does not identify whether the allegation against the first defendant is that the other defendants should speak with the plaintiff and his family or should speak to all persons present in the hall. That is a matter of some significance in the context of the cause of action alleged.

25 The third ambiguity in the pleading is that it relies merely upon the first defendant's authority. It is not said what is meant by the term 'authority'. Presumably, the term refers to the status of the first defendant as a bishop of the church and, from his submissions, this seemed to be the sense in which Mr Trkulja makes the allegation.

26 In Consolidated Press Holdings Ltd v Packer, John Fairfax Publications and Hilmer,[4] the court considered whether the chief executive officer of the publisher was liable for publication of defamatory material by reason of being in an analogous position to a proprietor of a newspaper. The contention was that the underlying reason why liability attaches to a proprietor who lacks actual knowledge or participation in the publication is that the proprietor has responsibility for the acts of his or her servants or agents. In contention in that case was whether by virtue of his position of power and authority over the servants and agents of the proprietor of the Sydney Morning Herald the chief executive officer should in effect be deemed to be a publisher of the matter complained of. Higgins J, rejecting this proposition, noted that:

The plaintiffs had not asserted any actual participation in or knowledge of the actual publication in question on the part of the chief executive officer, only alleging his position of authority and control. No authority had been cited which supported the view that in the absence of active participation in the wrong complained of, any director, governing director or managing director of a media or other publisher of a libel is liable for that publication and there was authority directly to the contrary. Distinction can be drawn with the position of an editor or an executive producer, persons who have a duty of direct supervision over the publication that is in issue.

27 In this case, the circumstances of the first defendant are even more removed that those of a chief executive. The unidentified authority of the first defendant is presumably purely one of position. No allegation is made of any actual participation in the publication and that lack of actual participation is significant in light of the ambiguities in the allegations to which I have earlier referred. The absence of any allegation of active participation in the publication or of material facts, for example suggesting the exercise of authority, direct supervision, or control, demonstrate that this allegation is fanciful, and not a realistic allegation. If the allegations made by Mr Trkulja are accepted, for the purposes of the argument as made out, publication by the first defendant of the words spoken by the second and fourth defendants in the church hall in the first defendant's absence, as a matter of law, is not capable of being established.

28 For those reasons I would not permit the amendment were I otherwise persuaded to extend the period of limitation. Rather, the futility of the allegation is a further reason not to extend the limitation period.

29 The other general discretionary grounds that are relevant are founded in observations of the High Court in Aon Risk Services Australia Ltd v Australian National University.[5] In that case, the plurality observed and I quote:

Generally speaking where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for. The importance attached by R 21 to the factor of delay will require that in most cases where it is a present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention so that they may be weighed against the effects of any delay and the objectives of the rules. There can be no doubt that an explanation was required in this case.

30 Since it was issued, this proceeding has been case managed in the Major Torts list. This too is a case where an explanation of delay is required but none has been provided. This is the fifth attempt to amend the pleading. I consider that the plaintiff has had a sufficient opportunity to plead his case. The original statement of claim was drawn by a member of senior counsel experienced in defamation work and although the plaintiff presently represents himself and has for periods of time during the proceeding been self-represented, he has had the benefit of solicitors and barristers with experience in defamation. Counsel from the NSW Bar made a better effort at paragraph 7 in the proposed amended pleading, which was changed by Mr Trkulja. Mr Trkulja seeks to return to that form of the amendment but while less objectionable in form, it would require an extension of the limitation period that has been refused.

31 The trial of the proceeding is set to commence on 8 December 2014. The proposed amendments, leaving aside whether any publication is actually alleged and their embarrassing form, are likely to raise issues that have not been alive in this proceeding to date. Those issues include the nature of the first defendant's authority and control over the second and fourth defendants, and the manner of the first defendant's participation in or knowledge of the relevant publication of the church hall words. A third issue is whether the first defendant was personally responsible for or even knew of the exact circumstances in which the second and fourth defendants spoke to the plaintiff or to those present within the church hall, and whether the first defendant was personally responsible for the precise form of words that were used. These additional issues create a need for the defendants to further consider their defences.

32 The absence of any explanation for not introducing this new cause of action against the first defendant in a timely way is relevant to a proper evaluation of the discretionary considerations, particularly the prejudice to the defendants when compared with Mr Trkulja's desire to introduce a new cause of action against a different defendant a couple of weeks out from the second trial date for the proceeding.

33 Any adjournment of the proceeding is out of the question for two reasons. First, both parties oppose any further adjournment of the proceeding, and are keen for a day in court. The defendants have faced the stress and pressure of claims against them for almost two years and are entitled to reasonable expedition in being granted the opportunity to put their defences. This is the second occasion upon which the court has made available resources to hear this case which is to be tried before a jury. I was not informed why the trial date in March this year was lost.

34 If an adjournment of the trial was granted, costs would not be an adequate remedy in the circumstances. One reason is that I have already noted. Costs do not compensate for stress or relieve the defendants from facing the allegations made against them. Furthermore, there have been a number of interlocutory costs orders already made against the plaintiff. The court file reveals that on 19 November 2014 the plaintiff persuaded the Deputy Prothonotary of the court that his circumstances of financial hardship were such that payment of the court fee of $361.50 for the issue of subpoenas should be waived. I cannot assume that any costs ordered against the plaintiff would be paid or recovered.

35 The other circumstance that Mr Trkulja has not adequately explained is that the amendment to paragraph 7 introducing a cause of action against the first defendant where there previously was none, followed on the defendants' correspondence explaining the consequence that the first defendant should cease to be a party. The defendants contended that the plaintiff was seeking a tactical advantage for his own personal reasons by pressing a claim against the first defendant, his earlier attempts at doing so having failed. The defendants suggested that this was not the conduct of a person seeking to vindicate his reputation, noting that no concerns notice was ever served on the first defendant with respect to the words spoken on 9 January 2011 and the complaint against the first defendant has never before been raised. I am not in a position to make any finding that the reasons for the amendment do, or do not, reflect a desire to gain a tactical advantage. However tactics in litigation must be engaged in in accordance with the rules rather than by way of special indulgence.

36 It is for that particular reason, as the High Court pointed out in Aon, that it is necessary for a party seeking to amend to not just to explain the reasons for delay but to demonstrate that the application is brought in good faith. The absence of material addressing those issues means that on the state of the evidence before me I cannot be affirmatively satisfied that the application to bring a claim against the first defendant was not a response to the defendants' suggestion that the first defendant must now cease to be a party.

37 I am not persuaded that it is appropriate, in order to achieve the overarching purpose under the Civil Procedure Act of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute between the parties, that I allow the amendments sought by the plaintiff.

38 Turning to the issue of aggravated damages, I propose to strike from the plaintiff's amended statement of claim the particulars of aggravation set out in paragraph 4(b)(iii)-(v) inclusive.

39 Aggravated damages may be awarded in cases where the conduct of the defendant has increased the subjective hurt suffered by the claimant. Since Praed v Graham,[6] it has been settled that a jury in assessing damages is entitled to look at the whole conduct of the defendant from the time the libel was published down to the time of verdict. This principle is well established and was referred to with approval by the Court of Appeal in Herald & Weekly Times Ltd v Popovic.[7]

40 The particulars contained in sub-paragraph (iii) refer to events occurring prior to the defamatory publication alleged to have caused the loss and damage. The publication was the words spoken in the church hall and the events in (iii) were the tree incident which preceded the church hall incident. For this reason those events cannot constitute circumstances of aggravation. The particulars in sub-paragraphs (iv) and (v), which are the same allegation repeated, are allegations of the original defamatory publication. What is alleged is the same conduct as is alleged to constitute the primary basis for injury to reputation. The conduct that caused the hurt cannot constitute conduct which increased the subjective hurt suffered by the claimant.

41 In these circumstances, the allegations made in those three subparagraphs are incapable in law of advancing a claim for aggravated damages and are struck out.

42 There is no further leave granted to re-plead the statement of claim. The plaintiff's claim now is stated, looking at the amended statement of claim dated 3 June 2013, in paragraphs, 7, 8 and 9 of that pleading, together with the particulars to paragraph 9 from which the particulars in subparagraph (b)(iii)-(v) will be deleted.

44 The defendants have applied for an order that the first defendant's costs in the proceeding and the defendants' costs of the various summons and interlocutory steps be paid on an indemnity basis, and be taxed and recovered immediately in default of agreement. I am not persuaded that the costs of the interlocutory summonses and of the notice to produce should be taxed on an indemnity basis nor, having regard to the imminent trial and likely conclusion of the matter, am I persuaded that I should grant leave under r 63.20.1 that those costs may be taxed and recovered immediately. On the latter question, I have considered, and been assisted by Dale v Clayton Utz (No 3).[8]

45 However, in relation to the costs of the first defendant in the proceeding, I am persuaded that the plaintiff has never been able to establish a tenable cause of action against the first defendant that it is able to pursue in accordance with the law of defamation in this state. His unmeritorious conduct in continuing to seek out of time to charge the first defendant with publication of defamation appears part of a wider dispute concerning the affairs of the Serbian Orthodox Church, and the circumstances that lie behind his attempted proceedings against the first defendant are not a matter that has been fully explained before me. The inference of an ulterior motive is open from the dogged insistence of Mr Trkulja on retaining the first defendant in the proceeding despite the substantial and increasing passage of time since the events complained of. Mr Trkulja is not ignorant of the limitation period or the principles that govern when it may be extended due to his experiences in respect of the causes of action based on the letters in the first incident. Mr Trkulja should have known that the proposed amendments by 6A and 6B and later by the amended paragraph 7 had no chance of success. Mr Trkulja's conduct in pressing to retain the first defendant in the proceeding has been unreasonable.

46 In the circumstances, I will order that the first defendant's costs of the proceeding be taxed on an indemnity basis. Other costs will be taxed on the standard basis. I will not make an order for the costs of the second notice to produce, which in any event is not pressed by the defendants at this stage, and I do not propose to investigate the circumstances in which costs were reserved by Daly AsJ. Those costs can remain reserved costs to be dealt with at the conclusion of the proceeding.

47 Accordingly, I make orders in accordance with these reasons.

[1] Trkulja v Dobrijevic & Ors (2013) VSC 261.

[3] (2013) VSC 261 [20]-[21].

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