Rothe v Scott

The defendant's explanation for seeking to reinstate the defence

1. When, and in what circumstances, may a party seek to reinstate a defence which has previously been struck out as embarrassing or hopeless under UCPR r 14.28?
2. The defence in its earlier form was struck out because of its obvious inadequacy to provide any detail as to which property housed paedophiles, when this occurred, and how the plaintiff would have known they were paedophiles and agreed to this course of conduct. The defendant's refusal to answer any of the particulars sought merely rubbed further salt into the wound. Mr Glaser, who was then acting for the defendant, acknowledged that the particulars were not answered, and said that this was because his client could not provide him with any of this information.
3. The defendant dispensed with the services of Mr Glaser and appeared in person on 16 June 2015. No application was made, on the day of this application, or at the argument before me on 5 June 2015, for an extension of time to provide the particulars. On 16 June 2015, the defendant repeated to the court that he could not provide any particulars. He added that he could not lead evidence of these matters at the trial, because he had been given the information confidentially.
4. The first intimation the plaintiff had that the defendant proposed that his defence of justification be reinstated was the plaintiff's solicitors' email of 24 July 2015, attaching a draft defence stating that the plaintiff allowed convicted paedophiles to reside in these properties "notwithstanding that the properties were close to bus stops" used by children. The plaintiff's request for further and better particulars remained unanswered. The proposed defence instead states: "Particulars of the paedophiles who resided at the properties will be provided following discovery by the plaintiff and/or the service of a notice to produce upon him and/or the service of subpoenas."
5. Where a fresh application of this kind is brought, there must be a material change in circumstances, or the discovery of material not previously available to warrant revisiting an earlier ruling of this kind. In Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 at [38], Mason P stated: "[38] The respondent's submission based on the interlocutory nature of this Court's orders also failed to grapple with a second difficulty. It had never been suggested that any change of circumstances might have justified revisiting the matter determined by this Court on 13 April. Even if the inspection order had been made by another judge of the Common Law Division, rather than the Court of Appeal, it is of critical importance that it was the culmination of contested proceedings. As McLelland J pointed out in Brimaud v Honeysett Instant Print Pty Ltd (19 September 1988, unreported, see Ritchie's Supreme Court Procedure NSW [13,047]): In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application."
6. Mr Goldsmith submits that the "new circumstance" is that his client did not need to answer any of the requests for particulars of justification, and the defendant's previous solicitor was negligent in not pointing this out. Mr Goldsmith submits that his client is not required to provide any particulars of who these paedophiles are, or when they were housed by the plaintiff. The defendant's former solicitor should have refused to answer the request on the basis that it sought irrelevant material and/or was oppressive, and should have foreshadowed that he could only provide those particulars after discovery, interrogatories, subpoenae and notices to produce.
7. Is this correct? In Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis) at [25,175] the authors state: "In the case of the defence of justification, the defendant is not entitled to discovery before delivering particulars of the defence (Goldsmith v Constable [1937] 4 All E R 293; see also Zierenburg v Labouchere [1893] 2 QB 183; Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148; Arnold & Butler v Bottomley [1908] 2 KB 151." [Citations included].
8. The fresh discovery of material to support a plea of justification may be added to existing particulars, as Tobin & Sexton point out. However, a total failure to provide any particulars, on the basis that the evidence will be obtained at some later stage, is not permitted, because an unparticularised defence of justification is no defence at all, and may accordingly be struck out.
9. In Brown on Defamation in Canada, United Kingdom, Australia, New Zealand and the United States at [20.4(2)], Professor Brown reiterates: "A "defendant is not entitled to discovery for the purpose of finding out whether he has a defence or not" (per Lord Escher M R in Zierenberg v Labouchere [1893] 2 QB 183 at 188 (CA). Accord: New Era Home App. Ltd v Toronto Star Ltd [1963] 1 O R 339 (HC) (Master).). He must be prepared to justify the accusation on his own, and not seek the assistance of the court for his proof (Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 146 at 150; 157 E R 792 at 794..). He or she must give full particulars before discovery. (Per Greer LJ in Goldschmidt v Constable & Co [1937] 4 All E R 293 at 294 (CA), noted in (1938) NLJ 239. See also Ad-West Neon Inc v High-Line Construction Ltd [1992] 3 W W R 445, 8 C P C (3d) 290, 101 Sask R 220 (QB). [Citations included].
10. The law on this issue has, as these statements of the relevant principles show, been settled for centuries.
11. Additionally, Mr Goldsmith's submission is not only contrary to longstanding principles in defamation law, but contrary to general practice in all areas of the law. A party who brings or defends a case cannot refuse to provide particulars on the basis that his opponent must provide that information on discovery or by notice to produce. It is a principle of long standing that a defendant is obliged to particularise a defence of justification based on existing materials rather than on the hope of later locating some material upon which the defence might be legitimately based.
12. These principles have been restated in recent times. In Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40], Kenneth Martin J stated that "it could never be legitimate to plead a defence of truth in an expectation that in due course the process of discovery, or answered subpoenas, will unearth some supporting evidence". Similarly, a subpoena issued in advance of particularisation of the defence of justification may be struck out as premature (Marshall v Smith [2013] WASC 432) or as a fishing expedition (Sali v Australian Broadcasting Corporation (No 2) [2013] VSC 719).
13. Nor is a request for discovery from the plaintiff the answer. The purpose of the particulars of justification is not only so that the parties can know the case they have to meet, but also so that the parameters of discovery are clear (Brown, at [20-31]).
14. Nor is it the case that a party giving such particulars can refuse to identify individuals by name, on the basis that this amounts to a discovery of evidence. Where an allegation is made that a plaintiff is guilty of, for example, conspiring with others to commit a crime, the plaintiff is entitled to "the names of person with whom, and the times and places at which" such events had occurred (Brown at 20-33, citing Wootton v Sievier [1913] 3 KB 499).
15. The proposed redrafted defence of justification fails every test. The inadequacies of this pleading are such as to satisfy all three provisions of UCPR r 14.28(1), even though satisfying only one of these requirements would be necessary.

Orders

1. Accordingly, I make orders as follows: 1. On the application of the defendant to amend the Defence in circumstances where it is acknowledged that the result will be the vacation of the half day hearing set down for 10:00am on Thursday 20 August 2015, and subject to the costs order set out below, the hearing date is vacated and the defendant is granted leave to file an Amended Defence (limited to the defences of qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) and at common law, honest opinion and unlikelihood of harm). 2. The defendant is to pay the plaintiff's costs occasioned by the vacation of the hearing date on an indemnity basis, including the costs of today. 3. The defendant's Amended Defence is to be filed and served in 21 days. 4. The defendant's application to reinstate the defence of justification set out in paragraph 12 of the draft defence is refused. 5. Matter stood over to the Defamation List on Thursday 27 August 2015 at 9:00am.

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