DISTRICT COURT OF QUEENSLAND
CITATION:
Thwaites v Austin & Ors (No 2) [2018] QDC 25
PARTIES:
CALUM MARTIN THWAITES
(Plaintiff)
v
ALAN AUSTIN
(First Defendant)
and
INDEPENDENT AUSTRALIAN PTY LTD
ACN 156 231 524(Second Defendant)
and
DAVID DONOVAN
(Third Defendant)
FILE NO/S:
3867/2017
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
5 March 2018
DELIVERED AT:
Brisbane
HEARING DATE:
28 February 2018
JUDGE:
Andrews SC DCJ
ORDER:
ORDERS AS PER INITIALLED DRAFT
CATCHWORDS:
PRACTICE AND PROCEDURE – Striking out pleadings – pleading qualified privilege at common law in respect of communications about government or political matters – whether adequate
Uniform Civil Procedure Rules, rr 149(1)(b), 150(1)(k), 151(2), 154, 160, 166, 171, 188, 367, 379 and 444.
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520COUNSEL:
A J H Morris QC for the plaintiff
A Nelson for the first defendant
SOLICITORS:
Slade Waterhouse Lawyers Pty Ltd for the first defendant
This proceeding involves a claim by the plaintiff against the first defendant (“Mr Austin”) for damages for defamation. Mr Austin elects for trial by jury.
The plaintiff applied[1] against Mr Austin for interlocutory relief and for declarations about the effects of Mr Austin’s amended defence. The plaintiff applied for determinations on about 226 matters. At the end of one day’s hearing, many of the plaintiff’s matters had been determined and the plaintiff abandoned the balance.
[1]Document 21 filed 29 January 2018.
In summary, the plaintiff applied for:
Orders to strike out 8 paragraphs (21 and 76A to 76G) of Mr Austin’s amended defence[2] (“AD”) on grounds that they constitute the withdrawal of admissions without leave, contrary to r 188 of the UCPR [8 discrete matters];
[2]Filed 22 January 2018, document 20 which is a pleading relied upon by only the first defendant.
Further or alternatively to 1, orders that those 8 paragraphs, another 23 sub-paragraphs and five sets of particulars in the AD be disallowed pursuant to r 379 of the UCPR [36 discrete matters];
Declarations that various matters in the amended statement of claim (“ASOC”) are, pursuant to r 166 of the UCPR taken to be admitted by Mr Austin, (because of the way Mr Austin’s counsel, in the AD phrased his pleas to those matters) [53 discrete matters];
Orders to strike out 21 non-admissions in the AD, pursuant to UCPR r 171 or the “inherent jurisdiction” [21 discrete matters];
Alternatively to order 4, orders pursuant to r 367 of the UCPR that Mr Austin or his solicitor make, file and serve an affidavit or affidavits deposing to the nature of the “reasonable enquiry” and the results of each such reasonable enquiry referred to in 21 paragraphs of the AD [21 discrete matters];
Orders to strike out 80 parts of the AD pursuant to r 171 of the UCPR [80 discrete matters]; and
Further and better particulars of 7 paragraphs and of two sets of particulars of the AD [9 discrete matters].
Mr Austin cross applied[3] seeking a determination of about 67 matters, being orders for:
Further and better particulars of 18 paragraphs of the ASOC; and
The striking out of 49 paragraphs.
[3]Document 23 filed 8 February 2018.
The court had the advantage of receiving the parties’ written submissions in advance and of finding time to read and consider the submissions and other essential documents before the hearing commenced.
The written submissions
To determine the application and cross application, which were submitted by the first defendant’s counsel, Mr Nelson, to be related, I considered, apart from the affidavit material, at least the following 289 pages of documents:
The plaintiff’s application of 22 pages;
ASOC of 73 pages (without schedule 1);
AD of 40 pages;
The “Applicant’s Submissions (Plaintiff’s Application)” (Thwaite’s subs 1) of 18 pages;
A rule 444 letter written on behalf of the plaintiff of 29 pages;[4]
[4]Pages 1-29 of Exhibit CMT-3 to the affidavit of CM Thwaites, court document 22.
A rule 445 letter written on behalf of the plaintiff of 11 pages; [5]
[5]JN2.
The “(Respondent) FIRST DEFENDANT’S OUTLINE OF ARGUMENT” (Austin’s subs 1) of 7 pages;
The “Plaintiff’s submissions in reply on the plaintiff’s application” of 42 pages (Thwaites subs 2);
The first defendant’s application of 4 pages;
The first defendants outline of argument of 16 Feb 2018 of 13 pages (Austin’s subs 2);
The plaintiff’s “RESPONDENT’S SUBMISSIONS (FIRST DEFENDANT’S APPLICATION)” of 26 Feb 2018 (Thwaites subs 3) of 2 pages; and
The “PLAINTIFF’S SUBMISSIONS IN REPLY ON FIRST DEFENDANT’S CROSS APPLICATION” of 27 Feb 2018 (Thwaite’s subs 4) of 28 pages.
An abbreviated application
By 4.30pm on the end of the first day of two days made available for the hearing of the application and cross application, I had made findings and orders on about half of the matters about which the plaintiff had applied for orders. The plaintiff elected to discontinue his application in respect of the balance of the orders he sought. Morris QC explained that the plaintiff was not prepared to pay the fee required for a second day. Mr Nelson requested that the first defendant’s application be adjourned to another date and he thus elected not to proceed the next day. The adjournment was unopposed.
Orders in accordance with the findings were reduced to a draft which has been initialled by me and placed with the file. That order included an order reserving the costs of the application to me. The order omitted to include reference to various orders which the plaintiff had sought which were refused.
Observations relevant to costs of the plaintiff’s application
It is necessary to mention the orders refused as an aide memoire for any subsequent argument about costs. I refused the plaintiff’s application for orders 1(a) to 1(h) inclusive, 2(a) to 2(h) inclusive, 2(m), 3(a), 3(b), 3(d) and 3(q) to 3(s) inclusive. While the plaintiff was unsuccessful in obtaining those orders, he was substantially successful in his application.
The matters upon which the plaintiff failed, were almost entirely concerned with orders sought to compel the first defendant to comply with the requirements of the UCPR that he seek leave to withdraw admissions. The plaintiff’s point that the rules provided that the first defendant must apply to the court was correct. The first defendant had been in breach of the UCPR and had failed to explain why he was withdrawing admissions. But by his counsel’s submissions, the first defendant offered an explanation.
An explanation for admissions: Since the plaintiff’s application was filed, and since the plaintiff’s submissions were received, Mr Austin’s counsel by his submissions, (Thwaites’s subs 1 par 6) explained that through inadvertence in preparing the first defence none of the relevant seven subparagraphs of paragraph 83 of ASOC were addressed. The omission was submitted to be based on a false assumption that the subparagraphs of ASOC par 83 which contain 23 alleged imputations, were identical with the subparagraphs of ASOC par 80 which contain only 16 alleged imputations. I note that Mr Nelson settled the AD and infer that the inadvertence was submitted by Mr Nelson to be his own inadvertence. I accept that is the explanation, though it was not sworn to.
The plaintiff pointed to no prejudice. Unusually, the withdrawal of those admissions will involve no further oral evidence.
There had been no effort by the first defendant to comply with the requirements of the UCPR for withdrawing admissions until after the plaintiff’s application was filed. The plaintiff had justification in applying for the orders I declined to make and for persisting with that part of his application until the first defendant’s explanation was offered. Apart from that section of his application concerned with about 20 orders, the plaintiff was overwhelming successful, numerically and in substance.
Further reasons required for 1 issue.
Oral reasons were given for orders as the hearing progressed during the day. Counsel for the first defendant made a particular request for written reasons in respect of his loss on plaintiff’s application 2(n).
Plaintiff’s Application paragraph 2(n)
This application by the plaintiff:
Is made pursuant to UCPR r 379 to disallow amendments at AD paragraphs 119 (e) – (f);
Was contested in writing for Mr Austin on only one basis, that UCPR r 444(1) mandated that the plaintiff make a structured complaint before applying for the relief sought;
By oral submissions, Mr Nelson defended the inclusion of par 119 (e) – (f) by reference to Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at page 574.
The plaintiff attacked the inclusion in submissions[6] paragraphs 36-42 and oral submissions.
[6]Thwaite’s subs 1.
I reject that UCPR r 444(1) mandated that the plaintiff make a structured complaint before his application for relief pursuant to r 379. Significantly, it is an application pursuant to UCPR r 379. That rule is in UCPR Chapter 10 part 3. The significance of that, is that this part of the application is not subject to the provisions of UCPR Chapter 11, Part 8. The plaintiff was not required to write to the defendant a rule 444 letter before seeking pursuant to r 379 to disallow an amendment.
UCPR r 379 provides:
Disallowance of amendment
379 (1) if a party makes an amendment without leave…another party may…apply to the court to disallow all or part of the amendment.
(2) On the application the court may make any order it considers appropriate.
The pleading of the three relevant sub-paragraphs (e), (f) and (g) appears in the AD in paragraph 119 as follows:
119 In the alternative, in relation to any material that is proved to have been published by the First Defendant, the First Defendant relies upon the common law defence of Qualified Privilege in respect of communications made on government or political matters and says that all of the material complained of was communication about:
(a) the conduct of the Australian Human Right Commission;
(b) the conduct of the publicly funded Queensland University of Technology;
(c) the operation of s18C of the Racial Discrimination Act.
(d) the conduct of press and other media outlets through which public discussion and criticism in Australia and/or by Australians largely takes place;
and the publication of the material complained of was reasonable in all the circumstances, namely:
(e) the First Defendant believed that each of the things that he said was true;
(f) the Austin OLO Forum Comments were made in a forum which enabled the Plaintiff to respond, if he chose to do so;
(g) the Second Austin Article was published in response to an attack upon the First Defendant by the Plaintiff.
Mr Nelson referred to this passage from Lange at page 574:
Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue.
Mr Nelson submitted:
Lange shows that whether a publication is reasonable depends upon “all the circumstances” and implied that the 3 impugned passages were proper circumstances for the jury to consider.
The pleading at 119(e) was in accordance with Lange at 574 as a defendant’s belief is relevant.
The facts pleaded at 119(f) together with Mr Austin’s belief in the truth enliven the privilege. It was possible that the plaintiff or someone in his camp would see the material first, and that the plaintiff would have the opportunity to respond before any third party saw the material. Alternatively, if the plaintiff responded, [presumably with sufficiently persuasive arguments to cause the first defendant to change his belief, the first defendant would have caused the material to be withdrawn.
The facts pleaded at 119(g) make publication reasonable so as to attract the defence of qualified privilege.
I reject the inference that the general phrase “all the circumstances” makes relevant to the defence of qualified privilege any matter which a defendant wishes to put before a jury.
I reject the submission that Mr Austin’s belief alone is a sufficient element of the defence. Belief at a relevant time must be a belief held upon reasonable grounds. Absent the allegation of the reasonable grounds the mere plea of belief should be struck out. The reasonable grounds for any particular belief may well vary from the grounds for another belief. Mr Austin’s pleading at 119 (e) conceals the need for separate consideration of grounds for each belief he alleges that he held.
That narrow hypothesis asserted by Mr Nelson is not the hypothesis pleaded. Further, I reject that such facts as are alleged at 119(f) are sufficient to enliven the privilege in this case. This finding is because the government or political matters of public interest were alleged to be four discrete topics in sub-paragraphs (a) to (d), none of which topics included the plaintiff or his conduct. I distinguish a case where the topic might be a person such as Mr Lange and where the government or political matter alleged to be of public interest is his conduct in the performance of his duties as Prime Minister of New Zealand and his suitability to remain in office. I distinguish it because in such a case the conduct of the person suing for defamation is identified as the topic and that conduct is a matter likely to be of public interest. The conduct alleged in paragraph 119 to be of interest was not the plaintiff’s.
I reject the submission. The facts pleaded at 119(g) are irrelevant to the common law defence of qualified privilege because the conduct of Mr Thwaites and of the plaintiff are not alleged at paragraph 119 to be among the 4 government or political matters of public interest.
The three sub-paragraphs should be struck out. The first defendant has liberty to replead.