Reported Decision : [1999] 47 NSWLR 302 [1999] 150 FLR 330 New South Wales Supreme Court CITATION : Harkianakis v Skalkos & Ors [1999] NSWSC 505 CURRENT JURISDICTION : Common Law Division Defamation List FILE NUMBER(S) : 14068/92 HEARING DATE(S) : 25 February 1999 JUDGMENT DATE : 31 May 1999 Stylianos Harkianakis (Plaintiff) PARTIES : Theodore Skalkos (First Defendant) Michael Mystakidis (Second Defendant) Foreign Language Publications Pty Limited (Third Defendant) JUDGMENT OF : Dunford J COUNSEL : Mr NG Pappas (Solicitor) (Plaintiff) Ms JC Gibson (Defendants) SOLICITORS : Nicholas G Pappas & Co. (Plaintiff) Mr T. Lazaropoulos (Defendants) CATCHWORDS : CONSTITUTIONAL LAW - Constitution, s 116 - whether implied right of freedom of discussion of religious matters - PRACTICE & PROCEDURE - Amendment of pleadings - whether futile - PRACTICE & PROCEUDRE - Application to refer issues to Court of Appeal. ACTS CITED : Constitution, s 116. Supreme Court Rules, Parts 12 & 31. Queensland v JL Holdings Pty Limited (1997) 189 CLR 146. Antoniadis v TCN Channel Nine Pty Ltd (1998) 44 NSWLR 682. Horton v Jones (no 2) (1939) 39 SR(NSW) 305. Heath v Goodwin (1986) 8 NSWLR 478. Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413. General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. CASES CITED : Theophanous v Herald and Wekkly Times Limited (1994) 182 CLR 104. Stephens v West Australian Newspapers LImited (1994) 182 CLR 211. Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116. Sivakumar v Pattison [1984] 2 NSWLR 78. Kruger v Commonwealth of Australia (1997) 146 ALR 126. Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173. Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519. David Syme and Co Ltd v Grey (1992) 115 ALR 247. DECISION : See para 29. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J 31 MAY 1999 14068/92 - Stylianos HARKIANAKIS v Theodore SKALKOS & Ors JUDGMENT 1 HIS HONOUR: On 17 October 1997 I gave leave to the defendants to file a Second Further Amended Defence in accordance with a draft then initialled by me and placed with the papers. Such pleading was not filed until 15 January 1998 and when filed it contained a number of additional matters not in the draft, being variations of the defences of qualified privilege and comment said to be appropriate to the different legislation applicable in other states and territories relevant to such defences - these amendments may conveniently be referred to as the "interstate defences". 2 By letter dated 18 February 1998, the plaintiff's solicitors objected to inclusion of these interstate defences in the Amended Defence on the ground (which was in fact the case) that they had not been included in the draft initialled by me on 17 October 1997. A number of letters followed until by letter dated 25 March 1998 the defendants' solicitor wrote: "Please advise whether your client is relying on publication in New South Wales alone and relying on publication in all other States and Territories as going only to damages ( Toomey -v- John Fairfax ). If so, then the interstate defences are not required to be pleaded in my client's second Further Amended Defence. If not, then your client will be relying on publication in each and every State and Territory and the interstate defences are required to be pleaded in my client's Second Further Amended Defence." 3 By letter dated 1 May 1998 the plaintiff's solicitors replied: "Our client is relying on publication in other states and territories as going only to damages. Accordingly, the interstate defences should not be pleaded in your clients' Second Further Amended Defence. Please arrange for the filing and serving of a Second Further Amended Defence in the form handed up to his Honour Justice Dunford on 15 October 1997." 4 Then by Notice of Motion filed 25 September 1998, the defendants sought the following orders: "1. Pursuant to Part 12 Supreme Court Rules, the following questions of law be removed to the Court of Appeal for consideration: (a) Whether, expressly pursuant to s.116 of the Constitution, or pursuant to any freedom of speech implied into the Constitution, there is a defence to a cause of action in defamation arising from any right to freedom of speech concerning religious issues. (b) If so, whether this freedom of speech defence is analogous to the implied Constitutional right of freedom of speech concerning political matter, or whether it constitutes grounds for striking out an action entirely, as occurred in Ballina Shire Council v. Ringland (1994) 33 NSWLR 680 or is otherwise subject to s.116 of the Constitution. (c) Whether, in circumstances where the head of a religious organisation who is not otherwise named claims to be identified by a reference to that organisation, the Courts will permit an action to be brought by an individual claiming to be identified by a reference to a Church (e.g. the Roman Catholic Church), or whether any such action is similarly liable to be struck out. (d) In the event of different concepts of freedom of speech applying to Territories, the proper method of assessment of damages for publications in more than one State or territory of Australia. 2. Such further directions as this Honourable Court may deem necessary, including the staying of these proceedings pending the hearing of this application. 3. Costs to be costs in the cause," and by affidavit of their solicitor sworn the same day annexed a copy of a proposed Further Amended Defence which the defendants sought leave to file. 5 That proposed Defence sought to add to the defences of qualified privilege that the matters were published "pursuant to an implied or express right of freedom of speech concerning religious matters," and the interstate defences were repeated and varied to include references to a right of freedom of speech concerning religious matters. 6 As it was indicated that a question involving the interpretation of the Constitution was involved, notice was given to Attorneys-General of the Commonwealth and each of the states, but none of them wished to intervene "at this stage". 7 The proceedings concern publications between March 1991 and May 1992. The Statement of Claim was filed on 7 August 1992; and accordingly s 7A Defamation Act 1974 does not apply and the whole of the proceedings are to be tried by the jury: Supreme Court Act 1970, s 88(b). 8 Since the proceedings commenced there have been considerable delays, some of which are set out in my judgment of 23 April 1997. Since then, there have been further delays, the parties have been to the Court of Appeal re contempt of court proceedings, see (1997) 42 NSWLR 22, and when the matter was called up in the Holding List on 23 October 1998 with the possibility of getting a hearing date, it was on the application of the plaintiff, stood over to the next call up because of the unavailability of his senior counsel. I accept that it was not realised at the time that there is generally only one call up of matters in the Long Matters List (as this is) per year, and the consequence is that, if the Long Matters List is maintained in its present form, the matter is unlikely to be heard before February 2000. 9 The general rule is that amendments of pleadings should be allowed so that a defendant is not shut out of raising an arguable defence thus precluding the determination of an issue between the parties: Queensland v JL Holdings Pty Limted (1997) 189 CLR 146 at 155. This principle applies in defamation cases, even at a late stage in the proceedings: Antoniadis v TCN Channel Nine Pty Ltd (1998) 44 NSWLR 682 at 690-695. 10 However, an amendment will not be allowed if it is bad in law or has no prospect of success and would be struck out if it appeared in an original pleading: Horton v Jones (no 2) (1939) 39 SR(NSW) 305 at 309-10, Heath v Goodwin (1986) 8 NSWLR 478 at 482, Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 at 425. The test is similar to that applied in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125. 11 It has been submitted that the question of whether there is a right of freedom of discussion of religious matters implied as a result of s 116 Constitution is a matter of such importance and complexity that I should at this stage of the proceedings refer it to the Court of Appeal for determination. 12 I do not agree. I do not see it as matter of great complexity and, in view of the delays which have already occurred in the matter, I consider it desirable that nothing be done to further delay the proceedings coming on for trial before the jury. Of course, whichever party is dissatisfied with my determination on the issue will have the right, subject to the leave of the Court of Appeal, to appeal to that Court against my interlocutory ruling or as of right at the end of the trial if the issue is relevant to the final determination of the case. 13 In support of her submission that the Constitution, s 116 implies a right of freedom of discussion of religious matters, so as to give rise to a defence of qualified privilege, the defendants' counsel relied primarily on the joint judgment of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 14 In that judgment the Court, after referring to its previous decisions in Theophanous v Herald and Weekly Times Limited (1994) 182 CLR 104 and Stephens v West Australian Newspapers Limited (1994) 182 CLR 211, considered a number of sections of the Constitution especially ss 7, 13, 24, 25, 28, 62, 64, 83 and 128 and held that the Constitution established a system of representative and responsible government, that freedom of communication on matters of government and politics is an indispensable incident to that system of government, and accordingly the Constitution necessarily protects freedom of communication between citizens concerning political or governmental matters so that they are able to exercise a free and informed choice as electors; but such freedom of communication is not absolute and is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution, and the interest which each member of the Australian community has in such discussion extends the categories of qualified privilege. 15 That is, the extension of the categories of qualified privilege to accommodate freedom of communication on matters of government and politics is implied because the Constitution expressly provides for a system of representative and responsible government. Unlike the position in the United States, there is no general constitutional right to freedom of speech: Lange at 567. 16 Section 116 is as follows: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth." Unlike the sections referred to in Lange it has nothing to do with the essential nature of the federal polity or system of government, but it is a provision imposing restrictions on Commonwealth legislative power: Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 122-3 per Latham CJ. Those restrictions have the effect of making religion, religious observance and religious tests irrelevant to the structure or conduct of the federal government or appointment to federal office. 17 The section effectively excludes religion from the system of government established by the Constitution and is, in this sense, the antithesis of those provisions establishing a system of representative and responsible government, it establishes nothing and prohibits the establishment of anything involving the federal government based on religion. The Constitution does not establish, and the Parliament cannot establish, as part of the system of federal government (or at all) any form of religious community. 18 Accordingly, the principles enunciated in Lange's case have no application to the discussion of religious matters or religious organisations or, to use a phrase taken from the judgment of Mason P in the Court of Appeal (at 42 NSWLR 22 at 26) and used by him to describe the issues in this case, "church politics". There is no need for discussion of religious matters to give effect to the system of government established by the Constitution and therefore no constitutional guarantees of freedom of discussion or communication in relation to such matters. 19 For these reasons I am satisfied that it would be futile to allow the amendments which seek to rely on an alleged right of freedom of discussion of religious matters, and to that extent the application to further amend the Defence is dismissed. 20 It was submitted on behalf of the plaintiff that a further reason for disallowing such amendments was that no affidavit had been sworn explaining the delay in seeking the amendments and / or deposing to facts indicating a prima facie case to justify the matters alleged. I do not decide the issue on this ground but for the reasons given above. 21 As to the so-called interstate defences, as the plaintiff's solicitors have said in their letter of 1 May 1998 (quoted above) that the interstate publications are relied on only as going to damages and not as separate causes of actions and as it is not necessary to plead matters going only to damages, a position conceded in the defendants' solicitor's letter of 25 March 1998, I can see no reason why the interstate defences should be included, and the Amended Defence should therefore be in accordance with the draft initialled by me on 17 October 1997. 22 The Notice of Motion seeks orders pursuant to SCR Part 12 that specified questions of law be removed into the Court of Appeal "for consideration". However, Part 12 only authorises the removal into the Court of Appeal of the entire proceedings: Sivakumar v Pattison [1984] 2 NSWLR 78, and the appropriate procedure appears to be to identify particular questions of law for separate determination under Part 31 and then, if appropriate, order the removal of the whole of the proceedings to the Court of Appeal under Part 12. Before proceedings are removed into the Court of Appeal, special circumstances must exist which render that course desirable: Sivakumar v Pattison at 84. 23 In view of my rulings on the application to amend, questions (a) and (b) are no longer relevant. 24 As to question (c) namely, whether the head of a religious organisation who is not otherwise named but who claims to be identified by reference to that organisation can maintain defamation proceedings, the question of proceedings being brought by a person who is not personally named is not new and has been considered in many cases; see Gately on Libel and Slander, 7th ed, ch 8, paras 281-294, and the issue of identification of the plaintiff is ultimately a question for the jury. 25 In the present case, this issue has already been dealt with in the judgment of Hunt CJ at CL on 20 October 1995 when his Honour described the defendants' objections including one that the plaintiff was not named in the relevant article as "nitpicking", and subsequently the defendants sought and obtained an order for further discovery relating to this very issue of identification of the plaintiff: see my judgment of 23 April 1997 at pp 4-5. No application has been made for a separate trial on the ground that the matter was incapable of being defamatory of the plaintiff and Hunt CJ at CL said such an argument "would be highly unlikely to succeed" (p 3). I see no reason why the defendants should "side-track" the proceedings at this stage so as to have this issue ventilated once again either in the Court of Appeal or elsewhere. If the plaintiff succeeds in relation to this issue the defendants will have all their ordinary rights of appeal in respect of this or any other issue of law involved in the proceedings. 26 Question (d) sought to be referred to the Court of Appeal is said to involve whether s 116 applies to the territories, and if so whether that affects the parties' rights in respect of publication in such territories, and Kruger v Commonwealth of Australia (1997) 146 ALR 126 was referred to. As I have held that s 116 has no application to the law of defamation in the states where it certainly does apply, this question is no longer relevant. 27 As to the question of the proper method of assessment of damages in cases involving publication in a number of states and / or territories, where the separate publications are not pleaded as separate causes of action but only relied on as going to damages, I was referred to Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 and Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519, but it was submitted that these cases were inconsistent with the later decision of the Full Federal Court in David Syme and Co Ltd v Grey (1992) 115 ALR 247, and that this question of assessment of damages in "multi-state defamations" should also be considered by the Court of Appeal at this stage, ie before the trial. I am not sure that in a case such as the present there is such inconsistency, but in any event it is not a matter which calls for removal into the Court of Appeal at this stage. If the defendants succeed on their defences, the assessment of damages will never arise so consideration of questions relating to such assessment may turn out to be academic. I can see no valid reason for referring to the Court of Appeal at this stage any questions which may ultimately turn out to be academic. 28 This case has now been pending for over seven years without going to trial and therefore without any determination of any issues of fact. During that time there have been, and by this application continue to be, numerous interlocutory applications, most of which it is claimed would clarify the issues at the trial and make its conduct more manageable. Whether that claim is justified may be open to some doubt, but in any event it seems to me that the stage has been reached where the proceedings should go to trial and the findings of the jury ascertained on the relevant issues of fact. Any matters of law which are relevant can then be taken to the Court of Appeal if either side is dissatisfied with any of the findings or rulings. 29 I therefore make the following orders: 1. Application to file Third Amended Defence in accordance with draft thereof annexed to affidavit of Vasilios Kalantzis sworn 25 September 1998 dismissed. 2. Extend time for filing Second Further Amended Defence in accordance with draft thereof initialled by me on 17 October 1997 to Friday 11 June 1999. 3. Extend time for filing any further Reply to such document to Friday 25 June 1999. 4. Notice of Motion filed 25 September 1998 dismissed. 5. Defendants to pay plaintiff's costs of the applications. ********** Last Modified: 05/31/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.