Visscher v Maritime Union of Australia

On application to amend defence; see transcript p 311 1This is an application by the defendant, that was made on the fourth day of the trial, to amend its defence to add as a matter in mitigation of damages the following: "The reputation of the plaintiff, as affected by the findings of Commissioner Raffaelli in Timothy Visscher v BHP, Australian Industrial Relations Commission (references omitted), as reported on the Australian Industrial Relations Commission website, and as reported in "workplace express" at www.workplaceexpress.com.au." 2The necessity for a defendant, who intends to make a case in mitigation of damages by reference to the allegedly bad reputation of the plaintiff, to plead that matter is recognised by r 15.21(2) of the Uniform Civil Procedure Rules 2005. 3The application to amend arose in the following circumstances. Towards the end of the cross examination of the plaintiff, counsel for the defendant, Mr Weaver, asked him a series of questions about some findings made by a Commissioner of the Australian Industrial Relations Commission, as recorded in a decision dated 20 May 2003 (Visscher v BHP [2003] AIRC 536) rejecting an application for reinstatement lodged by him. The decision of the Commissioner is before me at this point only for the purposes of determining this application. 4At paragraph 236 of the Commissioner's judgment, he sets out extracts from the cross examination of the plaintiff in that case which, in turn, involved him being asked questions about some earlier proceedings that the plaintiff had conducted in this Court. The transcript of the proceedings in the Commission records an acceptance by the plaintiff that aspects of what he either stated to this Court or was put on his behalf in those earlier proceedings were incorrect. 5Paragraph 238 of the Commissioner's judgment asserts that the effect of the plaintiff's answers in cross examination was that he had been "untruthful" in the earlier proceedings in this Court. Paragraph 239 contains an assertion, or at least an assumption, by the Commissioner, that the plaintiff's answers in the proceedings before the Commissioner involved an admission that he perjured himself in the earlier proceedings in this Court. Paragraph 240 records a finding by the Commissioner that the plaintiff had "revealed himself to be of seriously flawed character". Paragraph 241 records a finding by the Commissioner that it would be inappropriate for the respondent to "have as an employee in a responsible position such a dishonest person" as the plaintiff. 6In his cross examination before me, the plaintiff was taken to these passages and asked whether he accepted the substance of what the Commissioner said about him. The plaintiff did not. Thus, in terms of an attack upon the plaintiff's credit, the matter was not advanced. However, when objection was taken, it emerged that it was also being contended that these findings, together with another matter which I will shortly address, mitigated any loss of reputation that the plaintiff may have suffered from the publications the subject of these proceedings. This was said to be so because, not only were the findings that I have referred to recorded in a judgment of the Commissioner, which is a public document, those findings were further publicised on a website called "workplace express", which summarised various judgments in reinstatement proceedings. In summarising the reinstatement proceedings concerning the plaintiff, that publication referred to the finding of the Commissioner that the plaintiff had admitted perjuring himself, that he was of "seriously flawed character" and that it would be inappropriate to order his reinstatement because he was such a "dishonest person". Thus the defendant seeks to rely on this material as material either establishing that the plaintiff has a bad reputation, or at least diminishing the good reputation that the plaintiff asserts he has. 7Senior Counsel for the plaintiff, Mr Molomby SC, has opposed the amendment and the consequential application to tender the terms of the judgment and the "workplace express" article on a number of bases. He submitted that, if the amendment was allowed, there was a real possibility of prejudice to his client from the lateness of the application, given that the plaintiff's case was prepared and all but completely presented on the basis that there was no such plea of bad reputation. 8Mr Molomby SC also submits that the amendment and underlying point sought to be raised by the amendment is flawed for two reasons. 9First, he contends that evidence of such bad reputation cannot be adduced and, I would interpolate, no proper pleading based on it can be sustained if, in substance, what is sought to be asserted is only that there were specific past acts of the plaintiff that warranted him having a bad reputation (see Chappell v Mirror Newspapers Ltd (1984) Aust Tort Reports 80-691 and cases discussed therein). 10This point prompted some refinement of precisely what material was said to be probative of the plaintiff's bad reputation, in that the Commissioner's judgment appears to proceed from a conclusion that the plaintiff had admitted a specific act of misconduct, namely perjury, to an overall finding that he was a flawed character and dishonest. Thus there was some debate before me as to whether these latter aspects were at a sufficient level of generality to overcome Mr Molomby SC's objection. 11As part of that debate, Mr Molomby SC also took the point that the establishment of bad reputation would require more than simply pointing to a single piece of paper that was publicly disseminated which referred to him being dishonest or flawed, and presumably would require a witness to testify to his overall bad reputation. It is not necessary for me to resolve that debate because of the second point raised by Mr Molomby SC. 12The second point raised by Mr Molomby SC was that a plea of bad character can only be raised if the matter relied upon is in the "same sector" of the reputation that is put in play by the imputations that are pleaded (see O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; 53 NSWLR 89 and Australian Broadcasting Corporation v McBride [2001] NSWCA 322; 53 NSWLR 430, especially at 435 to 437, per Ipp AJA). Thus, in McBride, Ipp AJA stated: "[28] In my view, the rule that evidence of bad reputation must be confined to the relevant sector of a plaintiff's reputation means merely that the evidence, to be admissible, must be relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory material. This, as was recognised in O'Hagan v Nationwide News Pty Ltd, may be difficult to apply in practice. [29] On the one hand, the exercise of defining a particular 'sector' should not result in the widening of the area of the plaintiff's reputation beyond that which is capable of being harmed by the defamatory material. For example, in determining the sector applicable, the ambit of admissible evidence should not be enlarged artificially by reason of a desire to define the sector merely by reference to easily defined segments of the plaintiff's occupation. On the other hand, the relevant sector should not be limited 'by the artificial construct we now know as an imputation' (per Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119, as applied in O'Hagan v Nationwide News Pty Ltd by Stein JA and Brownie AJA. [30] The essential question in determining the relevant sector remains: what is the scope of the plaintiff's reputation capable of being harmed by the defamatory material?" 13Although the Commissioner's findings, as recorded or relayed by the "workplace express" article, referred to his reinstatement to his former position, which I infer was something associated with a ship, as being inappropriate, this was only said to be because he was a "dishonest person". In my view, it is clear that both the terms of the Commissioner's judgment and the article in the "workplace express" contain attacks either on the plaintiff's reputation, or on him personally, in relation to his capacity to be honest. In short, it was said he was dishonest. 14For present purposes, the nature of the imputations that are pleaded in this case is encompassed by sub-paragraphs 7(a) and (e) of the Amended Statement of Claim which plead that the second matter complained of conveyed the following allegedly defamatory imputations, namely: "(a) That as a master of a vessel at sea caught in a cyclone he had no due regard for the safety of his crew." and: "(dd) That as master of a vessel at sea caught in a cyclone he put the lives of his crew in danger." 15The metes and bounds of the imputations and, for that matter, the first and second matters complained of, are yet to be debated in final submissions. However, in broad terms, the "sector" of the plaintiff's reputation that is engaged by these pleadings is his competency as a Master of a vessel, his regard for the safety of his crew and whether he was reckless as to their lives or safety. 16None of the imputations that are pleaded, to my mind, are close to raising any question as to the plaintiff's honesty. The only possible connection between the imputations and the matters said to be evidence of him having a bad reputation are that the former concern his capacity to be a Master of a vessel at sea and the latter was said to reflect upon whether he was suitable to be employed by an entity that had seagoing operations. However, I do not think that that bare connection, by itself, means that there is truly an overlap between the relevant "sector" engaged by imputations pleaded in the plaintiff's Amended Statement of Claim and the sector of his reputation that may have been affected by the publication of the Commissioner's findings. At the risk of repetition, the former is concerned with his competency as a Master of a vessel and his attention to the safety of his crew, whereas the latter is directed to his honesty and, in particular, his honesty as a witness. 17For that reason, I uphold Mr Molomby SC's objection to the form of the pleading. In light of that conclusion, it is not necessary to address the balance of his points. I should add for the sake of completeness that, given the timetable that has now been laid out for the balance of the hearing, if I had allowed the pleading, I would not have expected that there would have been such a level of prejudice to the plaintiff from it being allowed that it would be irremediable. That said, that is, of course, not the sole issue that arises in the exercise of the discretion to allow an amendment (see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175). 18Accordingly, the application to amend is refused and consequently the tender of the Commissioner's judgment and the "workplace express" articles are also rejected.