BUTTON v LONDON and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA 1 May 1991, 1 May 1991 [1991] NSWCA 38 PRACTICE and PROCEDURE — Court of Appeal — defamation contested application to add additional grounds of appeal necessity of adjournment of hearing — appeal originally against damages only — immediately prior to hearing appellant seeks to add grounds relating to (a) suggested failure by evidence to establish identification; (b) alleged failure of trial judge to state reasons; and (c) misdirections as to imputations and the defences of truth, comment and unlikelihood of harm — held: (1) The Court should strive, if it can justly do so, to determine the real issues between the parties on the merits; (2) Last minute adjournment necessitated by the addition of fresh grounds of appeal caused injustice to the respondent whose claim arose in 1984 and was tried in 1988; (3) However, such injustice could be adequately repaired by an order that the appellant pay on a solicitor and client basis t:he costs occasioned by the application and consequent adjournment; (4) It would remain for the Court hearing the appeal to determine whether, to allow the fresh grounds of appeal, would involve a procedural unfairness, having regard to the manner in which the trial was conducted. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1,7 referred to. DEFAMATION — identification — letter to editor under false name — persons allegedly defamed not identified by name whether sufficiently identified by evidence — whether sufficiently identified for amount of damages awarded whether evidence of identification necessary in the manner of the conduct of the trial — held: An application to enlarge grounds of appeal (originally against damages only) to permit objections to the judgment of a District Court judge based upon want of identification would be permitted on terms. Consolidated Trust Co Limited vy Browne (1948) 49 SR (NSW) 86 referred to. PRACTICE and PROCEDURE — Court of Appeal — amendment of grounds of appeal — belated application — observations by Kirby P (Samuels and Clarke JJA concurring) on the necessity to produce evidence (as distinct from statements from the Bar Table) explaining the reasons for delay in making such applications. Kirby P To say the least, this is an unfortunate case. Listed before the Courtof Appeal today is an appeal from a judgment entered by Solomon DCJ in the District Court in favour of Mr Colin London and Mrs Shirley Jean London (whom I shall call the opponents). Last week the Court of Appeal Registry was informed that a motion would be filed by which Mr Peter Button, the appellant in the appeal, (whom I shall call the claimant) would move the Court to enlarge the grounds of appeal upon which he intended to rely. The Court directed that the motion should be returned today to be heard prior to the hearing of the appeal. The motion was opposed. The Court has proceeded to hear the motion. The appeal was stood down to await the determination of the motion. 2 UNREPORTED JUDGMENTS Defamation proceedings on a letter to the editor The proceedings arise out of a letter which was published in the letters column of the Illawarra Mercury on 2 October 1984. The letter was purportedly signed by one "R Drake, Princess Street, Berry". As it later appeared, that name was a pseudonym. There was no such person. The matter complained of which appeared under the name of Mr Drake was as follows: "The Editor Dear Sir, I write with regard to the current 'controversy' over the Shoalhaven City Council limiting the hours of operation of the Berry Donut Van. Councils invariably get ridiculed regularly about decisions they make or are reported to have made. In this case, Shoalhaven City Council and its officers deserve strong congratulations on its actions regarding this issue. Over the last few years, residents who live in the vicinity of the Berry Donut Van have been repeatedly complaining to council and the local police about the noise created by the hooligan element that frequents the Donut Van during the early hours of Saturday and Sunday mornings. These residents have suffered continual construction of their properties and disturbance of their sleep because of the hooligans that are attracted to the van during the weekend after hotel closing hours. It must be stated from the outset that the residents who make up the group of 'Dozers' (as described in the media by the van owners) are keen to be seen as concerned for the well-being of the local residents and their children, especially during the early morning hours described above. We are also concerned about the exaggerated claims of the owners that we are trying to destroy a business and create unemployment. This pathetic show of amateurish showmanship displayed by the owners is only serving to cloud the real issues. This further attempt by the owners to harass and harangue council and locaL residents into meekly accepting the unnecessary disturbances caused by the van during the early morning hours will be strongly withstood. Correspondence received recently from the Minister for Local Government on this matter clearly indicates that it is within council's power and responsibility to ensure that local residents are not disturbed unduly by such an operation. In addition to this, the police also share our concerns, not only about the noise and disturbance, but also about the way the van is attracting hooligans who use the adjacent streets to practice their dangerous driving behaviours. The limits placed on the Donut Van's trading hours are fair and reasonable and should not unduly affect their business. They are free to trade any day of the week during these hours, if they so desire. We would be happy to support a case for unlimited hours of operation only if the van is placed far enough away from the residential area as to cause minimal disturbance. We residents are not going to be stood over by the owners any longer. We are prepared to support any further action council would like to take on this matter, even if it is through the courts. In writing this letter, we felt it important to give the media the other side of the story on this issue, and would appreciate it if this letter was printed in your next edition in its entirety. Yours sincerely, R Drake" It will be noted from the matter complained of that: (a) the signatory of the letter, R Drake, was not the claimant; and URJ BUTTON v LONDON and ANOR (Kirby P) 3 (b) the matter did not identify the opponents by name, although, it is said, they were sufficiently identified by description. Trial in the District Court - Appeal and cross appeal When the trial came on before Solomon DCJ on 28, 29 and 30 October 1988 in Wollongong, the principal issue was (a); that is to say, whether or not the claimant was the publisher of the matter complained of. His Honour concluded on that question, and on the other issues which were tendered for his decision, in favour of the opponents. He entered judgment in favour of the opponents in the sum of $58,065.92 for what he described as "compensatory damages", being sums of $20,000 and $15,000 awarded respectively to the first and second opponents, together with interest. He rejected a claim by the opponents for aggravated compensatory damages, without giving reasons for doing so. As a consequence of his Honour's judgment an appeal was brought to this Court by the claimant. The appeal, as filed, was limited to the issue of the alleged excess of the damages awarded by his Honour. A cross appeal was also filed by the opponents. That claimed that his Honour had erred in failing to award aggravated damages to them and in failing to give reasons for his refusal to award such damages, The Court was told that the cross appeal was essentially filed as a defensive measure. A belated motion to enlarge the grounds of appeal By the motion, the claimant seeks to raise in the appeal additional grounds relating to: (1) suggested errors in respect of the identification of the claimant; (2) the suggested failure of his Honour to state reasons on certain matters; (3) the alleged defects of rulings and decisions made on the matter of imputations and on the defences of truth, comment and unlikelihood of harm pleaded at the trial by the claimant. The opponents object to the enlargement of the issues for the appeal. They do so particularly because of the great delay which has occurred between the publication of the matter complained of, the trial before Judge Solomon, the filing of the appeal and the return of the matter in this Court. In deference to the arguments which have been pressed upon the Court, I will state briefly the reasons why I have come to the conclusion that the amendments and all of them should be allowed. I will also explain why I have reached the conclusion that the amendments should be allowed upon terms which will require the claimant to pay, on a solicitor and client basis, the costs occasioned by the motion and by the adjournment of the appeal which is the inevitable consequence. New grounds as to lack of identification So far as the new grounds of appeal relating to identification are concerned, the grounds which the claimant wishes to add are as follows: "1. That his Honour erred in finding that the plaintiffs had established that the matter complained of (Exhibit A-App. Book 136) identified them. 2. That his Honour ought to have found in accordance with Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 that in circumstances where the matter complained of does not refer to the plaintiff by name, it is incumbent upon the plaintiff to lead evidence from persons who knew the special circumstances identifying the plaintiff that, first, they knew those circumstances and, second, they had read the matter complained of and that there was no evidence that any such person had read Exhibit A and his Honour ought accordingly to have dismissed the proceedings." 4 UNREPORTED JUDGMENTS The opponents contested the addition of these grounds. They said that, to permit them now to be raised, would involve a procedural unfairness of a kind which the High Court warned in Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7. The opponents argued that the issue of their identification was not specifically pleaded. Nor was it raised in the summary of issues when counsel then appearing for the claimant was asked at the trial to identify the issues for his Honour. Nor, according to the opponents, was it truly the matter which was litigated as to publication when the trial proceeded. The Court was taken to some of the cross-examination of the opponents from which it was invited to infer that the assumption upon which the trial had been conducted before Solomon DCJ was that the opponents were the subject of the letter and that such was not really in contest. The Court was also taken to the evidence of a witness, Mr Snowball, who indicated that he, and a number of other persons who were identified but not called, had inferred that it was the opponents who were referred to in the letter. The Court was reminded that in Berry there should be sufficient appreciation of the identity of the opponents and that the trial was conducted in Wollongong and determined in that special geographical context. On the other hand, unless the issue was conceded, it was clearly the obligation of the opponents, as the plaintiffs at the trial, to establish by evidence that they were identified in some particular way, not being actually named in the matter complained of. So much is established by the decision in Consolidated Trust Co Ltd v Browne (1948) 49 (NSW) 86. That case is the subject of the second additional ground upon which the claimant wishes to rely. It is also clear from a number of questions which were asked at the trial that the issue which the claimant wishes to raise in this Court as to identification was at least obliquely tendered for decision. It was certainly most clearly relevant to the damages which were recoverable by the opponents. Upon that basis, unless strong reasons of convenience require the contrary course, so long as an appropriate order can be made protecting the opponents for the adjournment to be occasioned, the claimant should have the opportunity of pressing upon the Court the argument which is now belatedly raised. I would stress in reaching this conclusion, I have reached no final view as to whether a procedural unfairness of the kind referred to in Coulton and Ors v Holcombe and Ors would result from following the claimant's intended argument to succeed. I am only to be taken as deciding that the argument should be permitted to be raised, so that it can be determined after a full hearing on the merits. New grounds as to failure to state reasons for rulings The second collection of grounds which the claimant seeks to add relate to a suggested failure of Solomon DCJ to state the reasons for his determination of a number of issues which are identified. The duty of the judge to give reasons is plain. It is stated in a succession of case; in this Court, most notably Pettitt v Dunkley [1971] 1 NSWLR 376 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The opponents urge that this additional ground should not be permitted. However they could not advance a reason why any prejudice would thereby be done to them of the kind referred to in Coulton and Ors v Holcombe and Ors. Clearly, an argument relating to the failure to state reasons for a final judgment is one which, by definition, is only available after the judgment is given. In the District Court, this will follow the conclusion of the trial. Cf Palmer and Ors v URJ BUTTON v LONDON and ANOR (Kirby P) 5 Clarke (1989) 19 NSWLR 158. For that reason, subject again to the balance of convenience, it would seem to me that the claimant should have the opportunity of advancing his argument in this Court upon those grounds. So far as the remaining collection of grounds, dealing with imputations and the defences of truth, comment and unlikelihood of harm, I can take these together. Some of them - and I refer especially to the argument relating to comment and unlikelihood of harm - would seem to have no great merit, at least so far as I perceive them at the moment. But all of them were matters which were pleaded. All were clearly argued at the trial. They were matters which the claimant should be allowed to raise in this Court, especially if the Court were to permit the claimant to argue other matters such as those relating to identification and the suggested failure of his Honour to give reasons. In short, if one of the grounds which is raised carries the necessity of an adjournment on terms, it becomes much easier for the Court to require that all of the matters raised should be returned and argued when the appeal is dealt with in its entirety. It is not appropriate on this motion for the Court to dismiss grounds of appeal which are arguably available without having had the benefit of a full argument on them. Balance of convenience and the basic rational principle of justice That conclusion brings me finally to the question of whether, notwithstanding the fact that there are new issues properly to be raised in the appeal, the inconvenience which is occasioned by the belated application is such that the Court should dismiss it or impose other special terms to redress the wrong occasioned to the opponents by the adjournment. Counsel for the opponents quite properly drew attention to the very great delays which have already occurred in this case. As I have said, the matter complained of was published as long ago as 1984. The very complaint of the opponents is of the hurt, pain and damage to their reputation which they have suffered and their desire to vindicate their names, something which, they say, cannot be achieved finally until this unhappy litigation is brought to its conclusion. There was an unexplained two and a half year delay between the date of the judgment and the return of the appeal. The application to enlarge the grounds of appeal beyond the complaint about the damages was not notified to the Court or to the representatives of the opponents until a week before the hearing. Even then the notification was in inadequate terms. The documentation on it was not provided to those representing the opponents and to the Court until the very day before the return of the appeal. The Court itself drew attention to the fact that no evidence was placed before it to justify these delays. Counsel for the claimant was permitted to tell. the Court that it was only when fresh minds - by that I took him to mean his own - were brought to bear upon the issues in the appeal, that fresh issues were discovered and the necessity for the motion and the application consequentially for an adjournment became plain. Iam conscious of the disappointment which the application so belatedly made occasions the opponents. They were entitled last week to expect that they would come to this Court today for the conclusion of the appeal and cross appeal and that this long drawn out case would be put at rest. However, it is a principle of our system of justice that courts strive, wherever they may justly do so, to determine real issues between parties on the merits. So long as there is an arguable point courts seek to satisfy the demands of justice by rational decision-making with the provision of reasons. This has the benefit of 6 UNREPORTED JUDGMENTS advancing an appreciation of justice. The reasons provide grounds by which the opinions of courts can, if necessary, be reviewed elsewhere in the judicial hierarchy. The claimant acknowledged that the application would necessarily carry a penalty in costs. He agreed that, if justice so required, an adjournment of the hearing of the enlarged appeal would be necessary to permit counsel for the opponents to prepare, in a more thorough way, than was possible with the documentation supplied to him only yesterday. With reluctance and even hesitation, it appears to me, on balance, that the application should be allowed. All of the grounds of appeal should be permitted. Necessarily an adjournment of the hearing of the appeal is required to permit the opponents to prepare their case. I say ''reluctance" for the obvious reason that the application is made so belatedly and also because no explanation has been proffered, by evidence, for the delay. The time is fast approaching, if it has not already arrived, when this Court must refuse applications of this kind unless they are supported by better evidentiary material to explain the delay in the grounds for the application and to justify the relief sought, notwithstanding the delay. Injustice of amendment and delay repaired by costs However, I have finally come to the opinion that the interests of justice as between the parties can be sufficiently protected by requiring that the claimant pay the costs of the opponents occasioned by his application on a solicitor and client basis. I make it plain that when the appeal is returned in disposing of the grounds of appeal which are, therefore, to be added to the claimant's notice of appeal, the Court as then constituted may consider for itself whether there are any reasons as to why those grounds should not proceed, as for example because it would involve a procedural injustice to the opponents. Alternatively the Court may then decide to impose some additional cost upon the claimant for the delay which is occasioned by the orders which must be made today. In the course of argument. one such additional order was raised for consideration by Samuels JA; namely, that the claimant, as a price for the enlargement of the appeal, should have to pay the costs of the appeal in any event. I have only held back from acceding to that suggestion because the Court was informed that (apparently to secure a de facto stay of execution upon the judgment) a substantial part of the judgment moneys has already been paid. Further, it is inherent in the reasons which I have just given that I have reached no final conclusions on the merits of any of the additional grounds of appeal which will be added for resolution of the Court when the appeal is returned. It is therefore preferable to leave the final cost orders in the appeal to the Court as constituted when the appeal has been fully argued and determined on its merits. Orders The orders which I would, therefore, propose are these: (1) Give leave to the claimant to file an amended notice of appeal in the form of the document which I will initial and which will be placed with the papers and which is the Amended Notice of Appeal which has been handed to the Court by the claimant today; (2) Adjourn the hearing of the appeal to a date to be fixed by the Registrar after consultation with the parties, which date shall be convenient to counsel for the opponents; (3) Order the expedition of the hearing of the appeal, category C, to the intent that the appeal should be heard by the Court within the period of two months; (4) Note that the appeal will be a one-day appeal; URJ BUTTON v LONDON and ANOR (Clarke JA) 7 (5) Order written submissions to be filed by the parties in respect of the additional grounds of appeal; and (6) Order that the claimant pay the opponents' costs of the motion and of the adjournment of the appeal today, which costs should be paid on a solicitor and client basis. Samuels JA I agree. I was first inclined to the view that we should discriminate amongst the proposed additional grounds of appeal and should at this stage reject those which seemed to raise issues which had not been debated below. That, as I read Coulton and Ors v Holcombe and Ord 162 CLR 1, is the course which the High Court in that judgment has generally enjoined. However, this is an extremely difficult case I have found in which to find a satisfactory balance of convenience. Moreover, to determine whether or not certain of the newly suggested grounds of appeal were, in fact, the subject of contest below would have required further argument than that which has been addressed to us. Therefore, it seems to me that the sensible course would be to allow all the grounds which the opponent sought to raise and to permit them to go for argument to the Court at a later day. However, as the President has indicated, I would entirely agree that the Court which bears the appeal should not think that it is bound to pronounce upon all the new grounds without taking account of the question whether some of them or all of them were not the subject of debate below. The Court hearing the appeal will be at liberty, in my judgment, at that stage to apply the essence of Coulton. As to the costs order that I suggested, I agree with the President that once we were informed that the sum of $40,000 had been paid to the opponents, the necessity for such an order seemed rather to diminish. Moreover, on reflection, it is not perhaps an appropriate order to be made in circumstances of this sort where the Court has concluded that an amendment of this general kind should be allowed. It is one thing to impose an order for costs upon the claimant seeking an indulgence by the motion and another to impose what might be seen as a penalty order for costs once that motion has been allowed and the amendments made. Clarke JA I agree with the learned President. ORDERS 1. Give leave to the claimant to file an amended notice of appeal in the form of the document which is initialled and which will be placed with the papers and which is the Amended Notice of Appeal which has been handed to the Court by the claimant today; 2. Adjourn the hearing of the appeal to a date to be fixed by the Registrar after consultation with the parties, which date shall be convenient to counsel for the opponents; 3. Order the expedition of the hearing of the appeal, category C, to the intent that the appeal should be heard by the Court within the period of two months; 4. Note that the appeal will be a one-day appeal; Order written submissions to be filed by the parties in respect of the additional grounds of appeal; and wm 8 UNREPORTED JUDGMENTS 6. Order that the claimant pay the opponents' costs of the motion and of the adjournment of the hearing of the appeal, which costs shall be paid on a solicitor and client basis. When this appeal is relisted, the Court is not part heard and it may be 5 differently constituted. Counsel for the Claimant: B McClintock with F Smark Counsel for the Opponent: M F Holmes 10 — Solicitors for the Claimant: W R Goodman and Associates Solicitors for the Opponent: Cox Wiseman and Davidson