Plaintiff v Defendants

1 The plaintiff sued the defendants for damages for defamation based on imputations arising from eight separate publications. A number of defences are taken that, relevantly for this application, include justification and qualified privilege, both common law and statutory.

2 On the eve of the trial, the defendants applied for leave to amend their defence. A proposed amended defence dated 19 May 2017 was circulated but the application was not supported by any affidavit. However, it was only with respect to one aspect of the amendments, a new Part EE of the Schedule and some cross references to it in the pleading, that the plaintiff opposed leave being granted. That aspect of the amendments was alleged to be futile and further the plaintiff claimed that she would be prejudiced if leave to amend were granted. There was insufficient opportunity for the plaintiff to file an affidavit addressing the issue of prejudice.

3 The defendants also served an expert report and sought leave to adduce evidence at trial in accordance with that report.

4 Following argument in respect of the opposed amendments, I gave the defendants leave to file and serve the further amended defence in the form of their proposed further amended defence with the exception of Part EE of the Schedule and the cross-references to Part EE in the particulars of paragraph 13(b). I refused the defendants leave to adduce expert evidence, announcing that I would later publish my reasons.

6 The amended defence, that is to be further amended, contained a Schedule that provided particulars of material facts, which through cross referencing in the pleading supported a number of the defendants' defences. For example, the defence alleged that if the Woman's Day print article and the Woman's Day online article were defamatory of the plaintiff, each meant and was understood to mean that the plaintiff had told lies by adding a touch of fantasy to stories about her name, age, upbringing and background in order to make it in Hollywood and that such meaning was substantially true. The particulars of the material facts in support of the defence were set out in the Schedule.

7 The defendants also alleged contextual truth under s 26 of the Defamation Act 2005. If the article bore the plaintiff's alleged meaning then, in addition to that meaning, the article also meant that the plaintiff had betrayed her roots by telling outlandish stories in order to portray herself as having a Hollywood movie-like life and that contextual imputation was substantially true meaning that the plaintiff's alleged meaning had not further harmed her reputation. Again, the defence cross referenced the Schedule where the relevant material facts were particularised.

8 The relevant material facts supporting a plea of partial justification were also particularised by reference to the matters set out in some parts of the Schedule. Defences taken to each of the remaining publications were generally supported by reference to some or all of the matters set out in the Schedule.

9 Particular mention must be made of the qualified privilege defence, which is only taken to one particular publication (the first Women's Weekly article). The qualified privilege defence was not based on the matters alleged in the Schedule. The particulars of that defence alleged that an earlier publication - in February 2015 based on an interview in October 2014 with the plaintiff conducted by a journalist, Caroline Overington, who wrote the article (the February 2015 article) - asserted that the plaintiff claimed she was distantly related to Walt Disney by marriage. Her paternal grandmother's aunt, Lillian Bounds, was Walt Disney's wife (the Disney statement).

10 Other statements made by the plaintiff to the journalist reported in the February 2015 article, but not the Disney statement, were put in issue in the first Women's Weekly article as inaccurate, untrue or questionable statements. The particulars alleged eight factual assertions, the last of which was the Disney statement and continued that, by reason of the content of the Women's Day print article, the accuracy and veracity of the February 2015 article was called into question. The Women's Day print article did not refer to the Disney statement. It was first mentioned by Ms Overington in the first Women's Weekly article when she stated that she had checked that there was an exclusive club at Disneyland whose members enjoyed special privileges. Notwithstanding that the Disney statement was not challenged in the impugned article, the defendants contended that its assertion in the earlier article was a relevant matter to establish the qualified privilege defence. It is not presently clear why that is so, but that is a matter for trial.

11 The Disney statement was not put in issue in any other respect, and in particular it was not contended that it was false, as a material particular of justification of the plaintiff's primary imputation that the article meant that she told lies or the true contextual meaning that the defendants alleged.

12 Immediately prior to proposing the further amended defence, the defendants gave notice of their intention to rely on an expert report prepared by Ms Carole Riley, a genealogist. Ms Riley's opinion was that the plaintiff was not related to Lillian Walt Disney (nee Bounds). The purpose of relying on Ms Riley's opinion was said to rationally affect, in the defendants favour, the probability that the Disney statement was a lie or that the alleged contextual imputation was substantially true.

13 The plaintiff objected that such evidence was not relevant as the pleadings did not relevantly raise the relationship between Lillian Disney and the plaintiff. Although the defendants contended, by referring to the particulars of the qualified privilege defence to the first Women's Weekly article, that the falsity of the Disney statement was raised by the pleadings, the amendment to the defence by Part EE was intended to put clearly in issue on the pleadings the falsity of the Disney statement.

14 The defendants contended that the Disney statement had always been in issue in the proceeding, because it was one of the matters addressed by Ms Overington when she sought to 'put the record straight'. Further, it was an issue that would be relevant and raised against the plaintiff in cross-examination on credit. Thirdly, the Disney statement is a background fact that supports the qualified privilege defence. The defendants submitted that a sufficient connection was evident in the reference to 'childhood' in paragraph 13A and the reference to 'background' in paragraph 5A of the amended defence. The defendants submitted that all they sought to do was to provide additional particulars of justification to make clear that the Disney statement was being specifically attacked as one of the plaintiff's lies or was a relevant falsity in one of her 'invented fantastic stories'.

15 I do not agree that the falsity of the Disney statement was put in issue on the existing pleadings. General references to childhood or background cannot, even by reasonable inference, be construed as giving rise to an issue in the proceeding that the Disney statement was one of the plaintiff's lies. I reject this submission that, by reference to the particulars of the defence of justification it was 'absolutely implicit' that the defendants were suggesting that the Disney statement was a lie. For that issue to become relevant the amendment was necessary and the allegations of fact that are made in Part EE of the Schedule are squarely directed at raising the issue that the plaintiff is unrelated to Lillian Disney, and that the contrary suggestion is false.

16 The context in which the issue is introduced into the pleadings is relevant. The material allegations found in Part EE of the proposed amendment to the Schedule were cross-referenced to paragraph 13(b) of the defence. By that cross-referencing, the particulars served to identify the material facts that supported the defence of truth at common law to the imputation that having been caught lying about her name, age and childhood, the plaintiff accused the magazine that revealed the truth about her of suffering from tall poppy syndrome.

17 Two observations about the existing allegations in the defence are pertinent. Significantly, the sting in this imputation is that the plaintiff had been caught lying. Secondly, the Disney statement is not identified as a subject on which the plaintiff has been caught lying by the defendants in their articles. I referred above to the reference in Ms Overington's article. There is a further reference in the first OK magazine article where the writer stated, 'Oh, and her great aunt was Walt Disney's wife Lillian Bounds.' The plaintiff's claim on this particular article does not refer to the Disney statement and neither does the defence pleaded in respect of that publication. The justification defence must be taken to be responding to the five particular imputations that are pleaded. Two of those imputations are that the plaintiff lied about her background but it is plain from the context that such background is to be understood as a reference to the area of Sydney where she grew up and to her parents occupation as professional dog exhibitors. A generic reference in the particulars to the matters set out in the Schedule could not, if the amendment to the schedule were permitted, incorporate the factual allegations sought to be made about the Disney statement. Further, the defence of partial justification is limited to the issues of the plaintiff's age and real name. The reference to the Disney statement as a background fact in the allegation of the defence of qualified privilege cannot assist the defendants' argument, particularly as its relevance to that particular defence is obscure.

18 I am satisfied that the proposed amendment is, as the plaintiff submitted, futile. The proposed amendments do not address the sting that the plaintiff has told a lie about her relationship to the Disney family. Accepting, as I must for the purposes of this application, that the defendants can establish the allegations at trial, they go no further than to demonstrate the absence of the familial relationship. What is required to establish a defence of justification is that the plaintiff was lying. It is a necessary but not a sufficient allegation that there was in fact no familial relationship. The defendants must allege and prove that the plaintiff did not have a genuine belief in the truth of matters told to her as a child, probably in good faith, by members of her immediate family that there was a familial relationship. That is a state of mind which must be properly particularised in a pleading as r 13.10(3)(b) requires. The defendants gave no particulars that the plaintiff did not have a genuine belief in the Disney statement and there is no evidence before the court that the defendants have a reasonable and proper basis for such an allegation.

19 For this reason alone, those parts of the proposed amendment are disallowed.

20 The defendants also sought leave to adduce expert evidence from a genealogist, Ms Carole Riley. Ms Riley's opinion is that there is no familial relationship between the plaintiff and Lillian Disney (nee Bounds).

21 In Dasreef Pty Ltd v Hawchar,[1] the plurality of the High Court identified the first issue arising when considering the admissibility of expert evidence.

Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact". That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.

22 For the reasons given, Ms Riley's evidence is not relevant to an issue in the proceeding.

23 However, assuming contrary to this conclusion that the amendment was not futile, I would not be persuaded on the balance of discretionary considerations to otherwise permit the amendment or to grant the defendants leave to rely on the evidence of Ms Riley.

24 In AON Risk Services Australia Pty Ltd v ANU,[2] the High Court stated, pertinently for this application -

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

25 The High Court also recognised in that case the importance that the court's discretion be exercised judicially on the basis of evidence.[3] The defendants bore the onus of persuading the court to exercise a discretion in their favour and failed to discharge it.

26 First, the application to amend is not supported by an affidavit. Consequently, I do not have any proper explanation for the defendants' failure to comply with procedural directions. The application is made on the eve of the trial, a copy of Ms Riley's report having been provided to the plaintiff's solicitors approximately 24 hours earlier than the proposed further amended defence.

27 Procedural directions required the defendants file any expert reports by 11 November 2016 and, at that or any earlier time, a genealogist's report was not foreshadowed. Section 65G of the Civil Procedure Act 2010 obliges a party to seek direction from the court as soon as practicable if the party intends to adduce expert evidence at trial; or becomes aware that the party may adduce expert evidence at trial. No explanation was provided as to when Ms Riley was instructed to prepare her report which is dated 17 May 2017. The issue of expert evidence at the trial was raised at a pre-trial directions hearing on 17 February 2016 when proposed expert evidence on another issue was considered. At that time, directions were made about the filing of expert reports touching that other issue.

28 The defendants gave no explanation to the court for their non-compliance with procedural directions or the Civil Procedure Act. Ms Riley's report was never foreshadowed and her name was not on the defendants proposed list of witnesses. These matters, too, were not explained by evidence.

29 The defendants submitted that there was no proper basis for the allegations until Ms Riley's report had been received. That submission overlooks the absence of an explanation why the defendants did not commission the report from Ms Riley at a much earlier stage in order to comply with the court's procedural directions. It is obvious that the Disney statement is part of the factual matrix arising from the articles on which the plaintiff sues. Counsel submitted that it was reasonable to defer a decision to seek such expert evidence until answers to interrogatories had been received. I was not taken to the interrogatories and answers and do not understand this submission as an explanation for either the want of a proper basis for any allegation about the Disney statement at an earlier point in time or the failure to draw to the court's attention at directions hearings the prospect that expert evidence might be called on this issue.

30 In the absence of evidence about procedural steps taken by the defendants in preparation for trial I am not able to accord any weight to their assertion. I am satisfied that the Disney statement could have been put in issue at a much earlier stage in the proceeding and that the defendants do not offer a satisfactory explanation for their failure to do so.

31 In Eaton v ISS Catering Services Pty Ltd & Ors,[4] speaking of the law's predisposition to permit adjournment of a trial if its refusal would prevent a party making out his or her case, the Court of Appeal observed:

That predisposition must now be qualified in light of the importance which is now accorded to case management principles, following the High Court's decision in AON, the subsequent enactment of the Civil Procedure Act 2010, and the further authorities mentioned below. Although the 'overarching purpose' of the Act and the rules includes the fair and just resolution of disputes, it also includes the efficient and timely resolution of disputes. So parties cannot casually ignore case management orders or directions. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in AON:

Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

...

The importance of case management principles in guiding the court's discretions in exercising case management powers has been reinforced by recent pronouncements of the High Court and this court. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategies Management and Marketing Pty Ltd, the High Court explained the importance of the "overriding purpose" under the Civil Procedure Act 2005 (NSW) in the exercise of its powers under that Act or Court rules. The High Court referred with approval to the doubts expressed by Lord Woolf MR in Biguzzi v Rank Leisure PLC, that "authorities decided under the old procedure could continue to be binding or even persuasive". Later, the High Court summarised the purpose of the Civil Procedure Act 2010 in the following terms:

The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. ...

In Yara Australia Pty Ltd v Oswal, this Court gave similar emphasis to the importance of the overarching purpose, and to the overarching obligations on parties and their lawyers under the Civil Procedure Act 2010. The court re-stated that such obligations on parties and their lawyers to this general effect have always existed.

The application for an adjournment of the trial in this case needed to be considered in the above context. The overarching purpose applies to the court "in the exercise of any of its powers", however they may arise - including all powers arising under "any procedural rules or practices of the Court". The court's power to adjourn proceedings or to refuse an application for an adjournment is therefore subject to the court's obligation to give effect to the overarching purpose.

32 For these reasons, I do not accept that it was appropriate for the defendants to defer determining whether there was a proper basis for the allegations they now wish to make until after they had evaluated the plaintiff's answers to interrogatories. The cardinal feature of the overarching obligation is that there be a just determination of the issues in dispute in the proceeding. The defendants have had ample opportunity to bring forth an issue in respect of the Disney statement in this proceeding but now choose to do so in a manner that severely constrains the plaintiff's opportunities to respond on this issue.

33 I have noted that the plaintiff did not have an opportunity to put on an affidavit in support of her counsel's submission that she would be prejudiced because she has had no time to respond to the report before the trial commences. In any event there was no affidavit from the defendants to respond to. Were it necessary to do so, I would have been constrained to exercise my discretion on the basis of competing submissions from counsel at the Bar table about matters of evidence.

34 That said, it is evident that the plaintiff would not be able to engage her own expert on the issue unless the trial was adjourned. The plaintiff lives in the United States and has made arrangements to be in Melbourne for this trial, as the defendants well understood, for up to a month. It is unlikely that an award of costs in her favour would relieve her prejudice, but more significantly in this proceeding she seeks the vindication of her reputation and any further delay in the trial of her proceeding may cause prejudice that clearly cannot be compensated by a costs order.

35 On the basis of counsel's submissions, had I not considered the amendment to be futile, the defendants have not persuaded me that, in the exercise of the court's discretion, the overarching obligation under the Civil Procedure Act is best achieved by permitting the amendment and giving the defendants leave to adduce the evidence of Ms Riley at the trial.

[1] [2011] HCA 21; (2011) 243 CLR 588, 602 [31] (citation omitted).

[2] (2009) 239 CLR 175, 217 [111]-[113] (citations omitted; emphasis in original).

[4] (2013) 42 VR 635, 646-648 [47]-[50] (citations omitted).