New South Wales Supreme Court CITATION : Robert Hughes v. Seven Network Ltd and Another [2000] NSWSC 490 FILE NUMBER(S) : SC 20153/98 HEARING DATE(S) : 25 May 2000 31 May 2000 JUDGMENT DATE : 5 June 2000 Robert Hughes PARTIES : Seven Network Limited Amalgamated Television Services Pty Limited JUDGMENT OF : Bell J at 1 COUNSEL : Plaintiff - Mr. C. Evatt Defendants - Mr. T. Blackburn SOLICITORS : Plaintiff - Teakle Ormsby Conn Defendants - Mallesons Stephen Jaques CATCHWORDS : DEFAMATION - Application for leave to amend defence - Lateness of application - Principles governing grant of leave LEGISLATION CITED : Defamation Act 1974 (NSW) Supreme Court Rules 1970 (NSW) Atkinson v Fitzwater [1987] 1 WLR 201 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 CASES CITED : Ketteman v Hansel Properties Ltd [1987] AC 189 Bickel v John Fairfax & Sons Ltd [1982] 1 NSWLR 474 Singleton v John Fairfax & Sons Ltd, Unreported, Supreme Court of New South Wales, Hunt J, 20 February 1980 DECISION : 1. Leave is granted to the defendants to file an Amended Defence to the Further Amended Statement of Claim pleading justification and contextual justification; 2. The plaintiff's claim of $1000 per week damages in economic loss is struck out; 3. The plaintiff's claim of damages for psychiatric disability is struck out; 4. Imputation 3(ii) is struck out and the plaintiff is granted leave to replead it; 5. Imputation 3(v) is struck out; 6. Imputation 3(vi) will go to the jury; 7. Imputation 3(vii) is struck out and the plaintiff is given leave to replead it; 8. Imputation 3 (viii) is struck out and the plaintiff is given leave to replead it IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST BELL J 7 June 2000 20153/98 ROBERT HUGHES v SEVEN NETWORK LTD AND ANOR JUDGMENT 1 HER HONOUR: On Wednesday 31 May 2000 I made orders, inter alia, granting leave to the defendants to file an amended defence to the further amended statement of claim pleading justification and contextual justification. I struck out imputations 3(ii), 3(vii) and 3(viii) granting leave to replead in each case. 2 Thereafter, on 1 June 2000, the plaintiff filed a Second Further Amended Statement of Claim. In accordance with my grant of leave imputation 3(ii) was repleaded. As the result of an oversight imputations 3(vii) and 3(viii) were pleaded in the same terms as those the subject of my orders striking them out. Additionally, the plaintiff pleaded a further four imputations; 3(xi), 3(xii), 3(xiii) and 3(xiv). 3 The defendants filed a notice of motion which came before me on 5 June 2000 seeking various orders including orders that imputations 3(ii), 3(iv), 3(vii), 3(viii), and 3(xi) - 3(xiv) be struck out. On 5 June Mr Evatt, who appears for the plaintiff, handed up a draft Third Further Amended Statement of Claim. This pleading was largely in conformity with the Second Amended Statement of Claim but pleaded imputations 3(vii) and 3 (viii) in accordance with my earlier orders and included two additional imputations; 3(i)(a) and 3(ix)(a). These two imputations are in the same terms as the contextual imputations which the defendant proposes to plead pursuant to my grant of leave to amend their defences. 4 The plaintiff requires leave in order to plead imputations 3(i)(a), 3(iv), 3 (ix)(a) and 3(xi) - (xiv). Mr Evatt submitted that leave should be granted in the light of the circumstance that the plaintiff now faces a defence of truth. The imputations earlier pleaded had captured the sting of the matter complained of but it had been necessary to give closer attention to the available imputations in the circumstances in which the plaintiff now finds himself. 5 The defendants sought orders striking out imputations 3 (vii) and 3 (viii) in the Second Further Amended Statement of Claim. As I have noted the Third Further Amended Statement of Claim repleads each of those in terms which conform to my reasons of 4 June 2000. Nothing further need be said concerning imputations 3(vii) and 3(viii). 6 No objection is taken to the plaintiff seeking to "plead-back" the contextual imputation. I propose to grant leave to the plaintiff to plead imputations 3(i)(a) and 3(ix)(a). 7 Imputation 3(iv) was pleaded in the same terms in the Further Amended Statement of Claim. Mr Evatt informed me that at the end of last year he had agreed to not rely on imputation 3(iv). This explains why it was not the subject of argument before me on 25 May and 31 May when I dealt with objections to the imputations pleaded in the Second Amended Statement of Claim. Subsequently Mr Evatt had given the matter further consideration (in the context of the defence of truth now mounted) and determined that he wished to press imputation 3(iv). Imputation 3(iv) is in these terms: "The plaintiff caused danger to occupants of the (Walk About) Hostel brought about by the fire in the house next door". 8 The defendants object to imputation 3(iv) upon the basis that its meaning is uncertain. It fails to specify the act or condition said to be attributed to the plaintiff. In Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 Hunt J observed: "The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends". 9 Mr Evatt drew may attention to lines 29 & 30 of Schedule "A" (the transcript of the matter complained of) and reminded me that when the programme is viewed (at transcript line 30) the fire officer, Mr Drummond, is seen standing in the plaintiff's hostel pointing to a burn mark when he says "look at that fire, it came into this building here so we had, we had the potential here for a disaster". Mr Evatt described the imputation as a difficult one but submitted that it was highlighted by a viewing of the film. 10 I consider that the challenge to imputation 3(iv) is made good. The meaning of the imputation is difficult to grasp. I propose to strike it out. 11 Imputation 3(ii) is the imputation re-pleaded in accordance with the leave granted on 31 May 2000. It now reads: "The plaintiff so conducted himself in the management of hostels for backpackers that he disregarded their safety by not taking adequate precautions against fire". Objection is taken to this imputation on the basis that it does not differ in substance from imputations 3(iii) or 3(vi). Imputation 3(vi) pleads: "The Plaintiff so conducted himself in the management of his hostels for backpackers that he exploited them by providing unsafe accommodation ". The accommodation is said to be unsafe because the plaintiff had not taken adequate precautions against fire. "Exploitation" without more might charge conduct materially different to disregard for safety of residents. However, the exploitation pleaded was as to the provision of unsafe accommodation. To my mind the two imputations do not differ in substance. Accordingly I propose to strike out imputation 3(ii). 12 Imputation 3(xi) is pleaded in these terms: "The plaintiff as a hostel manager will not make his premises safe until somebody dies". 13 The defendant objects to this imputation upon the basis that its meaning is unclear. I took Mr Evatt to concede the force of the objection to the imputation in this form. Mr Evatt said he was content with an imputation which pleaded "the plaintiff as a hostel manager will not make his premises safe". 14 Mr Blackburn submitted that imputation 3(xi) did not differ in substance from imputation 3(i)(a). In the amended form which Mr Evatt adopted during submissions (namely without the words 'until somebody dies') I do not consider that this imputation is bad either as to form or because it offends Part 67 r 11(3) SCR. Operating a hostel which is a death trap seems to me to carry a different and greater force to that conveyed by this imputation. I propose to allow the plaintiff to plead an imputation in these terms: "the plaintiff as a hostel manager will not make his premises safe". 15 Imputation 3(xii) is in these terms: "The plaintiff threatened peoples' lives in order to make money." The defendants object that this imputation is imprecise. It is capable of conveying a number of meanings. It may charge that the plaintiff directly threatened lives in order to make money. Or it may be that it conveys that the plaintiff, while not intending to threaten lives, in fact did so in order to make money. Mr Evatt points to line 21 of Schedule "A". The interviewer says to the plaintiff "you don't have to threaten peoples lives to make a buck". Pleading the words of the matter complained of may not always identify the defamatory meaning for which a plaintiff contends. In this case I consider that the meaning of the imputation is clear. The submission that "threatened lives" might be taken to convey a direct threat made by the plaintiff as distinct from putting people's lives at risk seems to me forced. I propose to grant leave to the plaintiff to plead imputation 3(xii). 16 Imputation 3(xiii) is in these terms: "As a hostel manager the plaintiff provided substandard accommodation". The defendants object to the grant of leave to plead this imputation at this late stage in the proceedings. No issue is taken either to form or capacity arising out of the terms of the imputation. The defendants submit that "sub-standard accommodation" may be justified upon a wider basis than the failure to take adequate fire safety precautions. This is a matter to which the defendants have not addressed any inquiries (except in a tangential way). I accept the force of this complaint. If the plaintiff wishes to rely on this imputation it would be necessary to vacate the trial date in order to give the defendants an opportunity to deal with it. The plaintiff wishes to preserve his trial date. I refuse leave to plead imputation 3(xiii). 17 Imputation 3(xiv) is in these terms: "The plaintiff was so negligent in the conduct of his hostel that he did not have a fire extinguisher on the premises." No objection was advanced either as to capacity or form with respect to this imputation. The only issue is whether leave should be granted. The defendants are not prejudiced by the inclusion at this stage in the proceedings of such an imputation. I propose to grant leave to the plaintiff to plead imputation 3(xiv). 18 The third amended further statement of claim includes a claim for actual damages. The particulars of that claim are: "The plaintiff has not been able to engage in full-time employment since the telecast of 26 May 1992 and suffers loss of wages at the average rate for male wage earners as assessed by the Commonwealth Statistician. Such a claim is continuing" 19 The defendants seek to have the plaintiff's claim in respect of economic loss (described as "actual damages") struck out. On 31 May 2000 I struck out a claim for economic loss. The plaintiff had pleaded a loss in an amount of $1,000 per week from 1994 being the return he had anticipated receiving from his operation of a backpacker's hostel. No documents were discovered in support of this claim and the means of quantifying it were not particularised. The plaintiff now seeks to advance a claim for economic loss upon this alternative basis. On his behalf such an alternative claim was foreshadowed in correspondence by his solicitors by letter dated 17 May 2000. A claim in the present form had been pleaded in the plaintiff's Statement of Claim filed in May 1998. 20 In the letter of 17th May 2000 the plaintiff furnished some particulars of his claim nominating the persons from whom he had obtained employment in the period following the publication of the matter complained of. I understand that further particulars of this claim have been supplied by letter dated 6th June 2000. 21 I am not prepared to strike the plaintiff's claim for economic loss out. I say nothing as to the merits of it. It is a matter for the trial judge as to whether there is evidence to go to the jury in support of this claim. 22 In the alternative the defendants sought orders that the plaintiff provide discovery of all documents in support of his claim for economic loss and that he provide proper particulars of the same. I have set out the history of the plaintiff's discovery in this matter in my reasons given on 4 June 2000. It may be that an order for discovery will not yield anything further. However, I propose making the order in the terms sought. 23 The plaintiff has now provided further particulars of this claim. I will hear Mr Blackburn as to whether any further order is sought in this regard. I will also hear Mr Blackburn on whether the defendants seek orders 12 & 13 in their Notice of Motion. In this respect I understand that particulars as to paragraphs 6(e) and 6(f) of the plaintiff's proposed Third Amended Statement of Claim have now been sought and supplied. ORDERS 1. The plaintiff is to provide discovery of all documents in support of his claim for economic loss including but not limited to all income tax returns (both personal and in relation to the plaintiff's business or businesses and any other source of income the plaintiff had), bank account statements, wage slips, deposit books, accounting and business records, records of expenses, financial plans, profit and loss statements and balance sheets for the period 1 January 1988 to 5 June 2000 by 5.00pm Friday 9 June 2000, 2. The plaintiff is to file a Third Amended Statement of Claim in accordance with these reasons by 5.00pm Thursday 8th June 2000, 3. Leave is granted to plead imputations 3(i)(a); 3(ix)(a); 3(xii), and 3(xiv) in the proposed Third Amended Statement of Claim, 4. Leave is not granted to plead imputations 3(ii), 3(iv), and 3(xiii) in the proposed Third Amended Statement of Claim, 5. Leave is not granted to plead imputation 3(xi) in the form it appears in the proposed Third Amended Statement of Claim but I grant leave to replead this imputation, ********** Last Modified: 05/03/2001 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.